Opinion
NOT TO BE PUBLISHED
Appeals from judgments of the Superior Court of Riverside County, Super. Ct. No. INF039323 John J. Ryan, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.)
Kathy Moreno, under appointment by the Court of Appeal, for Defendant and Appellant Jerry Eugene Reynolds.
Richard A. Levy, under appointment by the Court of Appeal, for Defendant and Appellant Jesse Dean Nava.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Steve Oetting and Donald W. Ostertag, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
MOORE, J.
Defendants Jerry Eugene Reynolds and Jesse Dean Nava were convicted of first degree murder charges which arose out of a murder for hire plot. Defendants raise numerous errors, most of which relate to jury selection. Unfortunately, because of a serious error relating to a peremptory challenge, reversal and remand for a new trial is required.
I
FACTS
We present the facts in the light most favorable to the judgment in accord with established principles of appellate review. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) Although this case includes many other details, we provide only an overview below.
Kathy Barr married businessman Pattison Hayton in 1992. Their marriage eventually grew troubled, and Barr began a relationship with Bernardo Gouthier, which became romantic. Hayton learned of the relationship and was not pleased. In 1997, Hayton initiated divorce proceedings. Barr characterized the divorce as ugly, and she and her children eventually moved in with Gouthier, which angered Hayton. At some point thereafter, Hayton began to plot Gouthier’s murder.
Also involved in the plot was defendant Jerry Reynolds, an air conditioning technician who became acquainted with Hayton when he was sent to his home to perform repairs. It was apparently Reynolds who brought defendant Jesse Nava into the plot. Nava, a methamphetamine user who was 16 or 17 years old at the time, knew Reynolds through a friend’s father. Reynolds offered Nava $5000 to kill Gouthier. A friend of Nava’s, Michael Marohn, was also recruited and was to be paid $1000 for his participation.
Marohn testified at trial pursuant to a plea agreement.
Reynolds told Nava when Gouthier would be home alone and gave Nava information about security measures. Reynolds provided Nava with a handgun, taser gun, and zip ties. Reynolds later described his role as that of “go between.”
On the night of the murder, October 25, 1997, Nava and Marohn invited a third person, Mario Gonzalez, to join them. Gonzalez was to be paid $1000. Together, they went to Gouthier’s house. Nava was carrying a.25-caliber handgun, Gonzalez had the handgun provided by Reynolds, and Marohn had the taser gun, also provided by Reynolds. They went in through an unlocked door and surprised Gouthier. Nava shot Gouthier four times, and the three assailants fled. Gouthier’s body was discovered later that night.
Gonzalez was tried separately, claiming that he was unaware of the murder for hire plot. He believed the intent was to commit a robbery. (See People v. Gonzalez (May 19, 2009, G040206) [nonpub. opn.].)
Shortly after the murder, Reynolds received $50,000 from Hayton, consisting of two wire transfers and stock from one of Hayton’s companies. The murder case, however, went unsolved for some time.
In 1999, the case was reinvestigated. The police eventually focused on Nava, who was interviewed in 2001. Nava confessed that he had fired the gun at Gouthier and that he had committed the crime for financial gain.
Hayton died of natural causes in 2003 in London, England.
In 2006, Nava and Reynolds were charged with first degree murder (Pen. Code, § 187, subd. (a)) with the special circumstance of murder for financial gain (§ 190.2, subd. (a)(1)). As to Nava, the information also alleged that he personally used a firearm (§ 12022.5, subd. (a)(1)) and that a principal was armed (§ 12022, subd. (d)). As to Reynolds, the information alleged two principal-armed allegations (§ 12022, subd. (d)).
Subsequent statutory references are to the Penal Code.
During trial, Nava was the sole defense witness. He testified that he, Marohn and Gonzalez went to Gouthier’s home to collect money they were owed for stolen paintings. He claimed that Gouthier, after inviting the three unknown teenagers into his home at night, became angry by the request for money, a struggle ensued, and Nava shot at Gouthier because he was afraid of him. Nava also testified that he was a methamphetamine addict.
In February 2007, the jury found both defendants guilty of first degree murder and found true the special circumstance of murder for financial gain. As to Nava, the jury found both of the firearm allegations true. As to Reynolds, the jury found true one of the two principal-armed allegations.
In November 2007, the court sentenced Reynolds to life imprisonment without parole, plus a concurrent one-year term on the enhancement. In January 2008, the court sentenced Nava to life imprisonment without parole, plus a consecutive 10-year term for the personal use of a firearm enhancement. The court stayed the principal-armed enhancement.
II
DISCUSSION
Defendants raise a number of errors. Because one of these errors unfortunately requires reversal and a new trial, we address that issue only.
Batson/Wheeler Objections
The United States Supreme Court, in Batson v. Kentucky (1986) 476 U.S. 79 (Batson), held that the use of peremptory challenges is subject to the Equal Protection Clause. “[T]he Equal Protection Clause forbids the prosecutor to challenge potential jurors solely on account of their race or on the assumption that black jurors as a group will be unable impartially to consider the State’s case against a black defendant.” (Id. at p. 89.) Similarly, “the use of peremptory challenges to remove prospective jurors on the sole ground of group bias violates the right to trial by a jury drawn from a representative cross-section of the community” under the California Constitution. (People v. Wheeler (1978) 22 Cal.3d 258, 276-277 (Wheeler). (This type of objection is referred to as a Batson/Wheeler objection.)
There is a three-step process for evaluating a defendant’s Batson/Wheeler objection to a peremptory challenge. “First, 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.’ [Citations.] Second, once the defendant has made out a prima facie case, the ‘burden shifts to the State to explain adequately the racial exclusion’ by offering permissible race-neutral justifications for the strikes. [Citations.] Third, ‘[i]f a race-neutral explanation is tendered, the trial court must then decide... whether the opponent of the strike has proved purposeful racial discrimination.’ [Citation.]” (Johnson v. California (2005) 545 U.S. 162, 168, fn. omitted.) The court must undertake an inquiry into counsel’s explanations and make findings as to their subjective genuineness. (People v. Reynoso (2003) 31 Cal.4th 903, 924.)
The ongoing presumption is that parties use peremptory challenges in a constitutional manner. (People v. Roldan (2005) 35 Cal.4th 646, 701, overruled on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) We review the trial court’s ruling on the question of purposeful discrimination for substantial evidence. (People v. Avila (2006) 38 Cal.4th 491, 542.) We give “great deference” to the trial court’s ability to distinguish bona fide reasons from sham excuses. (People v. Reynoso, supra, 31 Cal.4th at p. 908.) The trial court’s ruling is entitled to deference as long as the court has made a “sincere and reasoned attempt to evaluate each stated reason as to each challenged juror. [Citations.]” (People v. Silva (2001) 25 Cal.4th 345, 386; accord People v. McDermott (2002) 28 Cal.4th 946, 971.) On appeal, improperly overruling a Batson/Wheeler objection is prejudicial per se. (People v. Snow (1987) 44 Cal.3d 216, 226.)
Juror M.E.
The prosecutor indicated to defense counsel that she intended to exercise a peremptory challenge against Juror M.E., a Hispanic woman, and defense counsel objected pursuant to Batson/Wheeler. During questioning, the juror had initially stated that while she could find someone guilty of murder who was not present when the murder took place, she did not feel that someone in that situation should be punished to the same degree as someone who did pull the trigger. The judge explained that punishment was not a jury issue, and when asked if she could follow instructions on accomplice and aider/abettor liability, the juror said that she could.
The court found a prima facie showing giving rise to an inference of discrimination, a finding we must assume is supported by substantial evidence. (People v. Silva, supra, 25 Cal.4th at p. 384.) When asked to state her reasons for challenging the juror, the prosecutor responded: “[T]his is a 19-year-old young lady [with] no supervisory experience. Not only does she not have supervisory experience, she had difficulty in even pronouncing the word ‘supervisory experience.’ She said she was nervous. She barely —”
At that point the court interrupted, stating: “You are not helping yourself. She’s 19. She’s young. Of course, she doesn’t have any supervisory responsibilities. That would be rather — she’s 19 and has a problem with aiding and abetting, even though when I asked her the question, the rehabilitation stuff was junk. She rolled over and said ‘okay, I could.’ In the back of her mind she don’t like aiding and abetting.”
The prosecutor responded: “And that’s the primary case against Mr. Reynolds. I don’t want to have a juror that’s already predisposed against a legal principle and a legal theory of the prosecution’s case.”
The court replied: “I’m overruling their objection. Don’t over do it and don’t say things that aren’t supportive.” Both the court and the prosecutor agreed that the juror was articulate, and the court noted the juror had a responsible job.
Analysis
Defendants argue that the court, after rejecting the prosecutor’s stated race-neutral reason, then proceeded to interpose its own reason before denying the motion. When evaluating the proffered race-neutral reasons for exercising a peremptory challenge, the proper focus is on the subjective genuineness of the responding party’s explanation. (People v. Reynoso, supra, 31 Cal.4th at p. 924.)
In such a situation, it is up to the prosecutor, not the court, to provide a satisfactory race-neutral explanation for their decision to use a peremptory challenge. “[T]he rule in Batson provides an opportunity to the prosecutor to give the reason for striking the juror, and it requires the judge to assess the plausibility of that reason in light of all evidence with a bearing on it. [Citations.] It is true that peremptories are often the subjects of instinct, [citation], and it can sometimes be hard to say what the reason is. But when illegitimate grounds like race are in issue, a prosecutor simply has got to state his reasons as best he can and stand or fall on the plausibility of the reasons he gives. A Batson challenge does not call for a mere exercise in thinking up any rational basis. If the stated reason does not hold up, its pretextual significance does not fade because a trial judge, or an appeals court, can imagine a reason that might not have been shown up as false. The Court of Appeals’s and the dissent’s substitution of a reason for eliminating [the juror in question] does nothing to satisfy the prosecutors’ burden of stating a racially neutral explanation for their own actions.” (Miller-El v. Dretke (2005) 545 U.S. 231, 251-252.)
Other cases have also made this abundantly clear. In Paulino v. Castro (9th Cir. 2004) 371 F.3d. 1083, the trial court did not follow the procedure outlined in Batson, instead interrupting defense counsel and offering its own reasons as to why the prosecutor might have challenged the jurors in question. The court noted: “[I]t does not matter that the prosecutor might have had good reasons to strike the prospective jurors. What matters is the real reason they were stricken.” (Id. at p. 1090.) Similarly, in Williams v. Runnels (9th Cir. 2006) 432 F.3d 1102, the court held: “The district court and the California Court of Appeal also reviewed all the evidence in the record concerning the challenged jurors and determined that the record contained evidence for each juror that would support peremptory challenges on non-objectionable grounds. This, however, does not measure up to the [United States] Supreme Court’s pronouncement that the question is not whether the prosecutor might have had good reasons, but what were the prosecutor’s real reasons for the challenges. [Citations.]” (Id. at p. 1109.) Thus, as these cases make clear, relying on hypothetical reasons rather than the prosecutor’s stated reasons is improper. California courts have agreed, noting: “The court is not permitted to substitute its conjecture or surmise for the actual reasons declared by the prosecutor.” (People v. Phillips (2007) 147 Cal.App.4th 810, 818.)
Here, the prosecutor offered an explanation, or perhaps two explanations, if one wishes to so parse the colloquy between the prosecutor and the court. Those explanations were age and the lack of supervisory experience. Before the prosecutor could go any further, the court interrupted, and the only reasonable interpretation of the court’s following comments demonstrate a rejection of what the prosecutor had said thus far: “You are not helping yourself. She’s 19. She’s young. Of course, she doesn’t have any supervisory responsibilities.”
We disagree with respondent that the juror’s “nervousness” and “inarticulate responses to voir dire questions” were stated reasons to exercise the peremptory challenge. In context, “nervous” comes across as part of the general claim that the juror was young and unsophisticated. As to any claim that she was inarticulate, this is belied by the prosecutor’s later comment that the juror seemed articulate for her age.
The court then proceeded to interject its own race-neutral explanation regarding the juror’s possible lack of comfort with an aiding and abetting theory. It is clear that it was this alternate basis and not the prosecutor’s stated reasons that provided the court’s rationale for overruling the objection. The court did not, as it is required to do when overruling a Batson/Wheeler motion, accept the prosecutor’s stated race-neutral reason for challenging the juror. (People v. Reynoso, supra, 31 Cal.4th at p. 924.) Instead, the court came up with one of its own, which the prosecutor then adopted in her subsequent comments. But simply parroting back the court’s reasoning does not solve the problem. This reiteration just created a situation where the court was essentially evaluating its own motivation as rephrased by the prosecutor. We have no alternative but to conclude the court’s intrusion as the prosecutor was attempting to provide her race-neutral reasons was error. Given the constitutional dimension of the Batson/Wheeler doctrine, it is reversible error.
Respondent is in the unenviable situation of asking this court to defer to the trial court’s ultimate decision that the prosecutor had no discriminatory intent, while at the same time asking us to effectively reject the court’s ruling that age and lack of supervisory experience were not legitimate, race-neutral reasons for excusing the juror. Respondent first asserts that age is a valid, race-neutral reason for exercising a peremptory challenge. This is correct. But respondent also argues that the court merely provided additional reasons, without rejecting the stated reasons of age and supervisory experience. This we cannot accept. The court was dismissive of the age and supervisory experience explanation, rejecting it out of hand. The court indicated its rejection of the prosecutor’s reasons by interrupting and responding to the prosecutor’s comments, stating, “You are not helping yourself.” Even after the court overruled the objection, it admonished the prosecutor: “Don’t over do it and don’t say things that aren’t supportive.” We do not believe, as respondent argues, that the court was somehow silent on this issue. It was not — the court rejected the age supervisory experience argument. This is not a case where the court found the prosecutor’s argument inherently plausible, thus eliminating the need for detailed findings. (People v. McDermott, supra, 28 Cal.4th at p. 980.) Indeed, the prosecutor’s explanation regarding the juror’s age and experience was squarely rejected.
Respondent also points out that the prosecutor consistently exercised peremptory challenges against young jurors and urges this court to conduct a comparative juror analysis. (See People v. Lenix (2008) 44 Cal.4th 602, 622 (Lenix).) Such a comparative analysis may be appropriate, even for the first time on appeal, at the third stage of the Batson/Wheeler analysis. Respondent urges us to undertake this analysis for the first time on appeal and conclude that because the prosecutor was consistently challenging younger jurors, her motivation in excusing Juror M.E. was not based on race. (Respondent, in effect, is asking this court to reject the trial court’s conclusion that age and lack of supervisory experience were the real reasons for the peremptory as not based on substantial evidence.)
The court in Lenix noted that comparative juror analysis is appropriate for the first time on appeal at the third stage of the Batson/Wheeler analysis, where it is “relied upon by the defendant and the record is adequate to permit the urged comparisons.” (Lenix, supra, 44 Cal.4th at p. 622.) Respondent does not demonstrate how defendants relied on comparative juror analysis in this case with regard to youth, and further, “comparative juror evidence is most effectively considered in the trial court where the defendant can make an inclusive record, where the prosecutor can respond to the alleged similarities, and where the trial court can evaluate those arguments based on what it has seen and heard.” (Id. at p. 624.) None of those circumstances apply here.
Even if a comparative analysis is performed, it is one form of circumstantial evidence that is relevant, but not necessarily dispositive. (Lenix, supra, 44 Cal.4th at p. 622.) Therefore, we decline to rely purely on the fact that the prosecutor had been challenging younger jurors as the sole basis for effectively overturning the trial court’s decision that the prosecutor’s stated reasons of age and supervisory experience lacked credibility. It is the trial judge who must judge the credibility of the attorney offering the race-neutral explanation, as well as the demeanor of the jurors. (Id. at p. 625.) The record here is not sufficient to overcome our deference to the trial court’s ruling that age and supervisory experience were not legitimate reasons for challenging this juror.
We do not reach our conclusion lightly. It is clear from the record the evidence against defendants is more than substantial, and nothing in the record indicates this jury was in any way biased against defendants. We note the facts of this case are unlike any we have seen before. Had the trial court applied the wrong standard in determining whether the prosecutor had provided a race-neutral explanation for her use of a peremptory challenge, there would be a remedy short of complete reversal. We could have conditionally remanded the case to the trial court so that it would have the opportunity to make its decision under the proper standard. (People v. Johnson (2006) 38 Cal.4th 1096, 1100.) But nothing in this record indicates the court was mistaken as to the standard it must apply. Instead the record suggests the court, in its haste, rejected the prosecutor’s proffered explanation for the use of her peremptory challenge and then offered and accepted its own race-neutral explanation for the prosecutor’s actions. If we could conclude, as respondent urges, the court was simply adding its reasons to the prosecutor’s reasons, reversal would not be required. But the facts do not support such a conclusion. Here the court dismissed out of hand the prosecutor’s reasons before articulating its own reasons.
We must also decline to adopt respondent’s suggestion that we direct our attention solely to the comments of the prosecutor after she had the benefit of the court’s reasoning. To ignore the intervening comments of the court and to deem the subsequent comments of the prosecutor as an independent explanation of her motivation in exercising a preemptory challenge is too contrived. Logic and reason support our conclusion that the prosecutor’s later comments were the result of the court’s prompting and not a genuine explanation of her motivation for excusing the juror.
Further, it is certainly possible that had she not been interrupted, the prosecutor would have provided an argument the court could have relied on to overrule the objection — possibly even the same rationale the court did. We cannot know, however, and we can only reach a decision based on the record before us. This outcome, however, is not the prosecutor’s fault. Attorneys are trained to defer to the court, including allowing the court to interrupt, and it was the court’s failure to permit the prosecutor to complete her argument that led to this outcome.
We are sympathetic to a trial judge’s frustration as a result of painfully protracted voir dire, but the law clearly prohibits a trial judge from substituting its conjecture for the actual reasons declared by the prosecutor. If the law would allow us to apply a harmless error analysis to the circumstances of this case, the result might well be different. Because Batson/Wheeler is not subject to harmless error analysis, reversal is required.
III
DISPOSITION
The judgments are reversed and the matter is remanded for further proceedings consistent with this opinion.
WE CONCUR: SILLS, P. J., O’LEARY, J.