Opinion
A148962
08-08-2018
THE PEOPLE, Plaintiff and Respondent, v. IGNACIO ANAYA RAMIREZ, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. 51602309)
A jury found defendant Ignacio Anaya Ramirez guilty of one count of first degree residential burglary. The only issue on appeal is whether the trial court erred in denying defendant's Batson/Wheeler motion after the prosecution exercised its first peremptory challenge against a Black prospective juror. We find no error and affirm the judgment.
FACTUAL BACKGROUND
A resident of Pittsburg returned to her home on the late afternoon of October 18, 2015, in response to an alert from her alarm company that someone had broken into her home. She saw a bedroom window was broken, and her purse, her iPod, a television, and a laptop computer were missing. A few months later, defendant went up to a Pittsburg police officer in a parking lot and confessed to the burglary. Another Pittsburg police officer, Patrick Berhan, reviewed the police reports relating to the October 18 burglary and then interviewed defendant, who described what happened, including the whereabouts of the laptop computer. The police recovered the computer and returned it to the victim. The victim and Berhan were the prosecution's only witnesses at trial, and the jury saw the video of Berhan's interview of defendant. The defense cross-examined the police officer about his experience (he had been a police officer for about one to two months at the time he interviewed defendant) and his interview techniques, but did not otherwise present any evidence.
Defendant was convicted as charged of one count of first degree residential burglary, a violation of Penal Code section 459, and placed on probation for three years.
DISCUSSION
Applicable Legal Principles
"Both the federal and state Constitutions prohibit any advocate's use of peremptory challenges to exclude prospective jurors based on race. [Citations.] Doing so violates both the equal protection clause of the United States Constitution and the right to trial by a jury drawn from a representative cross-section of the community under article I, section 16 of the California Constitution." (People v. Lenix (2008) 44 Cal.4th 602, 612.)
A familiar three-step process applies when a defendant alleges the prosecution has made discriminatory use of peremptory challenges. "First, the defendant must make a prima facie showing that the prosecution exercised a challenge based on impermissible criteria. Second, if the trial court finds a prima facie case, then the prosecution must offer nondiscriminatory reasons for the challenge. Third, the trial court must determine whether the prosecution's offered justification is credible and whether, in light of all relevant circumstances, the defendant has shown purposeful race discrimination. [Citation.] 'The ultimate burden of persuasion regarding [discriminatory] motivation rests with, and never shifts from, the [defendant].' " (People v. Manibusan (2013) 58 Cal.4th 40, 75.)
"The prosecutor's ' "justification need not support a challenge for cause, and even a 'trivial' reason, if genuine and neutral, will suffice." [Citation.] A prospective juror may be excused based upon facial expressions, gestures, hunches, and even for arbitrary or idiosyncratic reasons.' [Citation.] '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 . . . . 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.' " (People v. O'Malley (2016) 62 Cal.4th 944, 975 (O'Malley).) " 'At [the third] stage, "implausible or fantastic justifications may (and probably will) be found to be pretexts for purposeful discrimination.' [Citation.] In that instance the issue comes down to whether the trial court finds the prosecutor's race-neutral explanations to be credible. 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." (People v. Johnson (2015) 61 Cal.4th 734, 755.)
If the trial court proceeds to step two by asking the prosecutor to explain his or her reasons for the challenge, without expressly making a finding of a prima facie case, on review "we too may simply proceed as though this is a step three case, analyzing whether the trial court properly accepted the race-neutral reasons given by the prosecutor." (People v. Mai (2013) 57 Cal.4th 986, 1050.)
" ' "We review a trial court's determination regarding the sufficiency of a prosecutor's justification for exercising peremptory challenges ' "with great restraint." ' [Citation]. We presume that a prosecutor uses peremptory challenges in a constitutional manner and give great deference to the trial court's ability to distinguish bona fide reasons from sham excuses. [Citation.] So long as the trial court makes a sincere and reasoned effort to evaluate the nondiscriminatory justifications offered, its conclusions are entitled to deference on appeal. [Citation.]" ' " (O'Malley, supra, 62 Cal.4th at p. 975.) "Thus, in reviewing a trial court's reasoned determination that a prosecutor's reasons for striking a juror are sincere, we typically defer to the trial court and consider only 'whether substantial evidence supports the trial court's conclusions.' " (People v. Banks (2014) 59 Cal.4th 1113, 1146.)
" '[O]ne form of circumstantial evidence that is relevant, but not necessarily dispositive, on the issue of intentional discrimination' is a comparison of the treatment of an excused juror with other similarly situated jurors. [Citation.] '[E]vidence of comparative juror analysis must be considered . . . even for the first time on appeal if relied upon by the defendant [if] the record is adequate to permit the urged comparisons.' [Citation.] But when, as here, a defendant 'wait[s] until appeal to argue comparative juror analysis,' our 'review is necessarily circumscribed,' and we 'need not consider responses by stricken panelists or seated jurors other than those identified by the defendant.' " (People v. Smith (2018) 4 Cal.5th 1134, 1147-1148 (Smith).)
Voir Dire of Juror Number 7
Before voir dire began, prospective Juror 7 completed a one-page jury voir dire questionnaire, answering yes to the question whether she had "an opinion or attitude about the criminal justice system which would make it difficult for you to be fair," and, yes, that she knew someone in law enforcement.
During voir dire by the court, Juror 7 stated that someone had broken into her home ("I came home to burglars") who were still there when she arrived. She called the police, but the burglars ran. She was not satisfied with how quickly the police showed up, and she was "dissatisfied" that law enforcement did not do what she thought they should have done in investigating. In response to the court's question to the panel whether jurors could "compartmentalize" their personal experiences and not let it factor into their analysis of the evidence in this case, Juror 7 said she thought she could "compartmentalize," and answered "no" to the judge's question whether her experience with the burglary would "interfere with your being a neutral fact finder in this case." She then volunteered, "[i]t would interfere with my—if we were processing the punishment, I might have a problem. But in terms of guilt or not guilt, it will not affect."
The trial court followed up on Juror 7's questionnaire. She had answered yes to knowing someone in law enforcement; that person was a paralegal, who she thought worked on civil cases, but was not sure. She promised not to consult with the paralegal on this case. Juror 7 then disclosed the reason she stated it would be difficult to be fair: her brother was shot by a Pleasanton police officer about five years ago, and he was left paralyzed. When the court stated that this was a "very different type of case," and asked whether there was "anything about that experience [with her brother] that you feel would impact on your ability to be fair here," Juror 7 said "[n]o."
Toward the end of the court's questioning, Juror 7 again answered "[y]es" that she could give both sides a fair hearing.
It was then defense counsel's opportunity to voir dire the jury. When it was Juror 7's time to respond to a series of questions defense counsel had posed to the jury panel about whether police were more likely to tell the truth, Juror 7 stated she thought police "should tell the truth." When defense counsel responded, "I think they should tell the truth, too. I mean, really everybody who's testifying is supposed to tell the truth," Juror 7 stated, "They're human, too, you know. Makes their decision based on emotions too, so . . . ." Defense counsel asked Juror 7 whether she would "agree" with the statement that "[s]ometimes some police officers are not good people. . . . Some are," Juror 7 replied, "Some of them, yes. . . . Not all." Later, Juror 7 answered defense counsel's "hypothetical" about "two interpretations, one which points toward guilty, [and] the other which points toward not guilty," and said she would vote not guilty.
Defense counsel confirmed with Juror 7 that the juror "had talked about your brother I think it was, right, who was paralyzed," but did not ask any follow-up questions on that topic. By contrast, the deputy district attorney explored the shooting at length. When it was his turn for voir dire, he asked Juror 7 to "explain more about why you checked 'yes' " on the questionnaire about inability to be fair. She explained:
"[Juror 7]: As I stated earlier, my brother was shot by a policeman and paralyzed. So that was my reasoning for checking the box.
"[Prosecutor]: And
"[Juror 7]: I just felt some type of way - I do feel some type of way about it because I don't feel that he was given a fair trial due to his lack of resources I guess you can say. He didn't have, you know, a good attorney and all that. [¶] So I just—I just feel some type of way about it.
"[Prosecutor]: And that last part that asks you what about that experience would make it difficult for you to be fair. So how does that play into your ability to be fair?
"[Juror 7]: How does it play into my ability to be fair. I think I can be fair. I just—I don't think—
"[Prosecutor]: What kind of fair?
"[Juror 7]: —policemen are above the law like I stated earlier.
This may be a transcription error; in context, it appears Juror 7 meant "aren't" above the law.
"[Prosecutor]: Okay.
"[Juror 7]: I feel like at the end of the day, they're human just like anybody else. And they can tell the truth or not tell the truth. I don't give bias to them because they're in a uniform. They're just like anybody else, so . . . .
"[Prosecutor]: Were you present during your brother's proceedings?
"[Juror 7]: No.
"[Prosecutor]: Did you have an opinion about the police officers in that incident?
[Juror 7]: Yes and no.
"[Prosecutor]: Okay.
"[Juror 7]: Partly because I—I don't really want to go into detail about his case.
"[Prosecutor]: Sure.
"[Juror 7]: But I do—at the end of the day, they were doing their job. I get it. But because it's my brother, it's different, you know. We feel different about it. So . . . .
"[Prosecutor]: And again, I don't want to pry. Was it in this county?
"[Juror 7]: It was. Is Pleasanton part of this county?
"[Prosecutor]: Alameda County.
"[Juror 7]: Yeah.
"[Prosecutor]: Okay. All right. Thank you. And that must have been hard. I'm really sorry for going too deep.
"[Juror 7]: It's okay." (Emphasis added.)
The prosecutor also elicited from Juror 7 that every defendant has the right to a jury trial, that in evaluating conflicting testimony she would focus on the facts, and she would not hold it against a defendant who did not testify at trial.
The prosecutor gave the jury panel a "scenario" of a man who lost his job, and then lost his family because he lost his job, and ended up on the streets a heroin addict. This hypothetical person shoots up, blacks out, passes out in the middle of the street and is prosecuted with "being under the influence and disorderly conduct." The prosecutor asked the panel which of "two types of jurors" they would be: one who would acquit out of sympathy and would "give [such a defendant] a break" because he had suffered enough, or one who would "sympathize[] with the defendant and hopes that he turns out fine . . . but understands that a crime was still committed." Juror 7 said "[i]t is very hard because you want to say both. . . . [¶] If it comes down to just having to base your judgment on facts, it would be the second. But it is hard, that—yeah. That would be hard. If I had to pick, I would be number two."
The Batson-Wheeler Motion
The prosecutor's first peremptory challenge was to Juror 7. Defense counsel immediately made a Batson/Wheeler motion stating that Juror 7 was the only African American woman among the then-seated 12 prospective jurors. Defense counsel "concede[d]" that Juror 7 had "expressed some—her brother being paralyzed," but argued that other people "expressed dissatisfaction with interactions with the police and police investigations." Defense counsel stated that another then-seated juror, number 6, was an African American man, and there were also "two other African American people in the panel" of 65 people.
Batson v. Kentucky (1986) 476 U.S. 79; People v. Wheeler (1978) 22 Cal.3d 258.
When pressed by the trial judge, defense counsel said her challenge was "mostly on race" not gender, because "women represented a pretty big portion of the 12" seated in the box, as well as the panel. Gender based discrimination is not raised as an issue on appeal.
The trial court asked the prosecutor to respond, and he did: "She brought up the brother and that was the main basis of my decision[.] I know that she ultimately said that [they] were just doing their job, but you could just I could just tell by her demeanor that she still has the distaste especially because it came from her brother." Another reason was "[s]he also stated that she was a victim of a residential burglary, and the defendants were never caught and she believed that the police did not do enough there. [¶] So there's two basis [sic] for me to believe that she has a distrust in potentially what law enforcement could say based [on] the brother and based on her personal experience with police in her residential burglary experience." The prosecutor also stated that Juror 7 seemed to misunderstand the jury questionnaire about law enforcement connections when she identified a paralegal as falling within that category.
The trial court invited a response from defense counsel. She rejoined that Juror 7 seemed to be answering questions "openly and honestly" and "paying attention" and was "communicative . . . with both attorneys." Although Juror 7's feelings were "different because it was her brother," Juror 7 would still be able to "access [sic] police officers as any other person." Regarding Juror 7 as a victim of a burglary, "I mean, half the panel is a victim [of] an unsolved burglary; nobody seemed to be quite happy about that." Finally, defense counsel was dismissive that confusion about the juror questionnaire could be a basis for the challenge.
The trial judge, having already asked the prosecutor for an explanation, moved straight to the third step of the Batson-Wheeler analysis, which she properly identified as whether there was a "credible [race] neutral reason for exercising a peremptory challenge." She noted first that there were two Black jurors seated in the jury box, and there were others in the panel who were Black. As to the reasons for the challenge to Juror 7, the trial court noted first that any issue about confusion with the juror questionnaire was indicative of the court's need to work on making the questionnaire clearer, because people were confused about it "on a daily basis." But the trial court had no difficulty concluding that the other two reasons given by the prosecutor were race neutral, and the court denied the motion. The first reason was Juror 7's "extremely personal experience with her brother" who was shot and rendered paralyzed by a police shooting. The trial court characterized "a dynamic there that is extremely personal, and clearly this was still very difficult and probably will be for her life. [¶] So I think that's different than other people having bad experiences with police officers, and the other I think being the victim of a residential burglary and she was dissatisfied that the police did not investigate properly or further especially since she and her family were present. . . . [¶] So I'll deny the motion . . . ."
The trial court was hesitant to estimate how many others in the panel were African American ("I'm always a little uncomfortable looking out at an audience and assuming what I'm looking at is—is correct in terms of somebody's heritage or racial background"), but believed that some others in the panel were Black.
Analysis
Defendant contends that the trial court erred in denying the motion because Juror 7 repeatedly said she could be fair and would not be influenced by her past experiences with police. We easily conclude that there was no error. After a short, straightforward voir dire in an uncomplicated case, the voir dire of Juror 7 stood out for the relative length of questioning by the prosecutor and for its personal and sensitive subject matter. From what we can discern in the voir dire, no prospective seated jurors other than Juror 7 wrote on their initial juror questionnaire that they had concerns about their ability to be fair because they had a brother who was shot and paralyzed by police from a neighboring police department, and did not believe that the brother's criminal trial had been fair. Further, Juror 7 had walked in on a burglary in progress in her own home, a crime that was never solved and left her dissatisfied with the police response and investigation. Substantial evidence supports the trial court's conclusion that the prosecution, whose case depended on the testimony of a police officer, had a non-discriminatory basis to exercise its challenge against Juror 7. These are specific, ample, race neutral bases on which to exercise a peremptory challenge. (See People v. Reed (2018) 4 Cal.5th 989, 1001 ["[w]e have previously recognized a relative's negative experiences with law enforcement as a race-neutral hypothetical reason for a strike that dispels any inference of discriminatory intent"].) The fact that the prospective juror may have stated that she would nonetheless be fair is of no consequence. This was not a challenge for cause; it was a peremptory challenge.
After excusing jurors for hardship, the entire voir dire was less than two and a half hours.
On appeal, defendant also argues that a comparison with other potential jurors shows that the prosecutor was "searching for justifications" for challenging Juror 7. Defendant asks us to undertake "comparative juror analysis" since defense counsel mentioned to the trial court that other jurors (although she did not specify whom) expressed dissatisfaction with the police. We do so now.
On appeal, defendant states that defense counsel pointed out that several of the other prospective jurors also stated "they or a close relative or friend had suffered" but defendant cites nothing in the record to support this statement was made by defense counsel.
The challenge to Juror 7 was the prosecutor's first peremptory challenge. (He exercised only two more challenges after this one.) A review of other jurors identified by defendant on appeal as not having been challenged (Jurors 1, 5, 12 and 13) does not change our view. Juror 1's grandmother's residence was burglarized 25 years ago, and the prospective juror presumed, but did not know, that her grandmother was dissatisfied because her property was not recovered. This was "really long" ago, per Juror 1, and it would not affect her ability to be fair here. Juror 5 knew a "near and dear" person (the court's term) whose home had been burglarized (no one was home and nothing was recovered), but Juror 5 did not know how to answer whether that person was dissatisfied with the investigation. Upon further clarification from the court, Juror 5 did not believe the person she knew was dissatisfied with the investigation, but simply with the result. Adopting the trial court's terminology, Juror 5 said that he could probably "compartmentalize" and be fair to both sides. Juror 12's apartment was broken into about 25 years ago when the juror was not home, and nothing of value was taken. The police were contacted, no one was apprehended, and Juror 12 stated that nothing about the incident would impact the juror's ability to be fair.
Juror 12 was asked by the court "from what you knew of it, were you satisfied or dissatisfied with the process, not necessarily the end result, but the process," and answered "[y]es," which was ambiguous, given the construction of the question. But then juror 12 immediately said he or she could be fair, and apparently no counsel pursued the question further on voir dire. --------
As to Jurors 1, 5 and 12, it is plain that their experiences with and opinions about prior burglaries are nothing like Juror 7's.
As to Juror 13, defendant is simply mistaken. The prosecutor exercised his second challenge to excuse this juror, who had been a robbery victim twice and whose home was burgled twice. Juror 13 reported both of the burglaries to the police. Someone was apprehended in one burglary case, but not the other; Juror 13 was satisfied with the outcome of one case, but not the other. His "gut feeling," to use the court's terminology, was that he could be a fair juror to both sides. The fact that the prosecutor exercised his next peremptory challenge against Juror 13 undercuts defendant's argument on appeal that the challenge to Juror 7 was not credible. It is consistent with one of the reasons for challenging Juror 7; a dissatisfied burglary victim who, like Juror 7, asserted he could still be fair.
Finally, defendant argues on appeal that Juror 10 also had a brother who was involved in a criminal case, and this juror went unchallenged by the prosecutor, thereby making the prosecutor's reasons for challenging Juror 7 implausible. That observation does not withstand scrutiny, either. In response to questions from the trial court, Juror 10 disclosed that his brother was a defendant in a criminal case (the nature of the crime was not similar to the case against defendant here). Juror 10 learned about the situation "pretty much after the fact." Contrary to Juror 7, he thought his brother's case was handled properly, including actions by law enforcement, courts and attorneys. Plus, contrary to the statement in Juror 7's jury questionnaire, Juror 10 indicated in voir dire that nothing about these circumstances would affect his ability to be fair to both sides. When it was the prosecutor's turn to follow up on voir dire, he elicited that Juror 10 was not close to his brother, more because they "don't get along so well," and not because of the criminal process. They had not been "super close" at the time of the incident, and Juror 10 learned about the charges from his parents, who told him the nature of the case and the outcome. Juror 10's reaction to hearing about his brother's situation was that he "[w]asn't happy. Disappointing that he's in trouble. But, you know, about it, I guess. Upset that he's in trouble." Defense counsel asked no questions of Juror 10 on the topic. In sum, Juror 10's situation is not comparable to Juror 7's. In contrast to Juror 7's situation, there was no evidence that Juror 10's brother had been seriously injured by law enforcement, or that Juror 10 thought his brother had been treated unfairly. We need say no more.
Looking at the whole picture, Juror 7's situation was qualitatively different from the other jurors. She had two characteristics that were undesirable to the prosecution— a brother paralyzed in a shooting by another law enforcement agency in Alameda County, and negative feelings about being the victim herself in a burglary. No one else was directly comparable to her. (See People v. Harris (2013) 57 Cal.4th 804, 837 [that other unchallenged prospective jurors may have had "possible biases similar to H.C.'s is not determinative because the combination of H.C.'s potential biases made him sufficiently different from other jurors who had been evaluated at the time the prosecutor excused him"].) The fact that Juror 7 said at various points that she could be fair is, on this record, not dispositive. The prosecutor did not need to establish that there were grounds sufficient to challenge Juror 7 for cause. (See Code Civ. Proc., § 226.) The issue was whether " 'the prosecutor's offered justification is credible and whether, in light of all relevant circumstances, the defendant has shown purposeful race discrimination. [Citation.]' " (Smith, supra, 4 Cal.5th at p. 1147.) The trial court did not err in denying the motion.
DISPOSITION
The judgment is affirmed.
/s/_________
Miller, J. We concur: /s/_________
Richman, Acting P.J. /s/_________
Stewart, J.