Opinion
A156783
02-17-2021
THE PEOPLE, Plaintiff and Respondent, v. JAMES CHARLES AMOS, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. 18CR003319)
Defendant James Charles Amos appeals his convictions for first degree murder (Pen. Code, § 187, subd. (a)); possession of a firearm by a felon (§ 29800, subd. (a)(1)); and unlawful discharge of a firearm from a motor vehicle (§ 26100, subd. (d)). Amos contends the prosecutor used a peremptory challenge to excuse a potential juror because of his race, in violation of Batson v. Kentucky (1986) 476 U.S. 79 (Batson) and People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler). We conclude the trial court properly denied Amos's Batson/Wheeler motion and therefore affirm.
Undesignated statutory references are to the Penal Code.
I. BACKGROUND
A. The Charges
Amos was charged by information as follows: count one—the murder of Jeffery Duckett (§ 187, subd. (a)); count two—possession of a firearm by a felon (§ 29800, subd. (a)(1)); and count three—unlawful discharge of a firearm from a motor vehicle (§ 26100, subd. (d)). The information alleged count one had been committed by means of shooting a firearm from a motor vehicle with the intent to inflict great bodily injury (§ 190, subd. (d)). The information further alleged multiple firearm enhancements as to counts one and three (§§ 12022.5, subd. (a), 12022.53, subds. (b), (c), (d) & (g)), as well as enhancements for infliction of great bodily injury (§ 12022.7, subd. (a)) and a prior prison term (§ 667.5, subd. (b)).
B. The Evidence Presented at Trial
Because this appeal focuses on issues arising from jury selection, we provide only an abbreviated summary of the evidence presented at trial.
On the night of October 3, 2017, police responded to a call concerning a shooting at a Jack-in-the-Box in East Oakland. When the police arrived, they found Duckett, Amos's cousin, suffering from several gunshot wounds.
Police retrieved surveillance footage capturing the incident. The footage showed a red van approach the entrance of the Jack-in-the-Box and stop, when suddenly the driver of the van began firing gunshots at Duckett, who fell to the ground. The driver of the van exited the van, looked at Duckett while holding a gun, and walked through the parking lot of the Jack-in-the-Box. The driver then entered a building across the street with the gun in his hand. When he came out of the building, he no longer had the gun and walked back to the van.
Witness J.L. who lived in an apartment near the Jack-in-the-Box testified he heard gunshots at the time of the incident. His window faced a church, which was across the street from the Jack-in-the-Box. After hearing gunshots, J.L. looked out of the window and saw someone who was holding a gun walk into the church. J.L. recognized the person holding the gun because he had previously seen him at the church every day. He identified Amos in a pre-trial lineup as the person whom he saw holding a gun. Billie S. and her husband knew Amos for many years through the church. Billie S. testified Amos had picked up the pastor on the morning of the incident, as he frequently had done, and drove him around in the red van. She identified Amos in security footage from the day of the incident showing him helping the pastor into the red van. Billie S. also confirmed Amos was the person in the video exiting the van and running to the church.
C. Verdict and Sentencing
The jury found Amos guilty on all counts. The jury also found true the firearm enhancements as to counts one and three.
On count one, the trial court sentenced Amos to a term of 25 years to life, plus 10 years for one of the firearm enhancements (§ 12022.53, subd. (b)). The sentencing for counts two and three was stayed pursuant to section 654. The court also stayed the three-year great bodily injury enhancement under section 12022.7, subdivision (a). The court did not impose the prior prison enhancement (§ 667.5, subd. (b)), agreeing with the parties that it was based on a conviction that was too remote, as well as the other firearm enhancements (§§ 12022.5, subd. (a), 12022.53, subds. (c), (d) & (g)).
II. DISCUSSION
Amos solely contends on appeal that the trial court improperly denied his Batson/Wheeler challenge to the prosecutor's dismissal of Eric H., a Black prospective juror. We disagree.
A. Legal Framework
The United States and California Constitutions prohibit the discriminatory use of peremptory challenges. (Batson, supra, 476 U.S. at p. 89; Wheeler, supra, 22 Cal.3d at pp. 276-277.) "A three-step inquiry governs the analysis of Batson/Wheeler claims." (People v. Miles (2020) 9 Cal.5th 513, 538.) " 'First, the trial court must determine whether the defendant has made a prima facie showing that the prosecutor exercised a peremptory challenge based on race. Second, if the showing is made, the burden shifts to the prosecutor to demonstrate that the challenges were exercised for a race-neutral reason. Third, the court determines whether the defendant has proven purposeful discrimination. The ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike.' " (People v. Jones (2011) 51 Cal.4th 346, 360; People v. Smith (2018) 4 Cal.5th 1134, 1146.)
"If, under the second stage of a Batson/Wheeler analysis, a prosecutor is asked to justify his or her conduct in exercising peremptory challenges, that prosecutor must provide a ' " ' "clear and reasonably specific" ' " ' explanation of his or her ' " ' "legitimate reasons" ' " ' for exercising the challenges." (People v. Smith (2019) 32 Cal.App.5th 860, 868.) " 'The prosecutor's justification does not have to support a challenge for cause, and even a trivial reason, if genuine and race neutral, is sufficient. The inquiry is focused on whether the proffered neutral reasons are subjectively genuine, not on how objectively reasonable they are. The reasons need only be sincere and nondiscriminatory.' " (People v. Hardy (2018) 5 Cal.5th 56, 76 (Hardy).)
Thereafter, at the third stage of the Batson/Wheeler inquiry, " ' "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. Jones, supra, 51 Cal.4th at p. 360.)
In addition, at the third stage of a Batson/Wheeler review, " 'a defendant may engage in "comparative juror analysis"; that is, [the defendant] may compare the responses of the challenged jurors with those of similar unchallenged jurors who were not members of the challenged jurors' racial group.' " (Hardy, supra, 5 Cal.5th at p. 77.) This form of circumstantial evidence " 'is relevant, but not necessarily dispositive, on the issue of intentional discrimination.' " (People v. Smith, supra, 4 Cal.5th at pp. 1147-1148.)
Moreover, " ' " '[t]he trial court is not required to make specific or detailed comments for the record to justify every instance in which a prosecutor's race-neutral reason for exercising a peremptory challenge is being accepted by the court as genuine.' " ' " (People v. Vines (2011) 51 Cal.4th 830, 848, disapproved on another ground in Hardy, supra, 5 Cal.5th at p. 104.) But " '[w]hen the prosecutor's stated reasons are either unsupported by the record, inherently implausible, or both, more is required of the trial court than a global finding that the reasons appear sufficient.' " (People v. Gutierrez (2017) 2 Cal.5th 1150, 1171 (Gutierrez), quoting People v. Silva (2001) 25 Cal.4th 345, 386 (Silva).)
Finally, "[w]e 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." (People v. Burgener (2003) 29 Cal.4th 833, 864.) We apply a deferential standard of review, examining whether there was substantial evidence to support the trial court's conclusions. (People v. Lenix (2008) 44 Cal.4th 602, 613-614 (Lenix).)
With this established framework in mind, we turn to the specifics of the trial court's Batson/Wheeler analysis in this case.
B. Additional Background
During jury selection in these proceedings, defense counsel objected on Batson/Wheeler grounds after the prosecutor used its third peremptory challenge to excuse Eric H. On his jury questionnaire, Eric H., a 64-year-old, college-educated Black man who worked as a scheduling manager for AC Transit in Oakland, indicated he had contributed or belonged to Amnesty International, the American Civil Liberties Union (ACLU), Doctors Without Borders, Sierra Club, the Southern Poverty Law Center, and "many civil rights and environmental groups over the years."
Eric H. also indicated he or a close friend had been a victim of crime and that a friend had been wrongfully charged with a crime. When asked if he had "any opinions or feelings about police officers in general that would cause [him] to view them as more or less believable than other witnesses," Eric H. wrote, "I have been treated with suspicion by police in Santa Rosa (twice), and Berkeley and Pomona." When asked if he had opinions about "the fairness and effectiveness of the criminal justice system, Eric H. replied, "We have the highest percentage of people behind bars than any other developed country. But major financial criminals get light sentences."
During voir dire, the trial court asked Eric H. about his college education, employment, and responses about his friend being a victim of crime and another friend who had been wrongfully charged with a crime. The court turned over the questioning to the lawyers, granting them five minutes with each prospective juror.
The prosecutor cited Eric H.'s questionnaire response concerning an incident during which he felt he had been treated with suspicion by police officers. Eric H. explained he had been involved in a car accident in the past after another vehicle "had plowed into [him]." When the police arrived at the scene, "they seemed to be more on the woman who she had plowed into me and were dismissive of me until I mentioned that, gee, I also work for the city," at which time "they seemed to be more balanced."
The prosecutor also asked Eric H. if he had any opinions about police officers being called to testify in this case. Eric H. testified, "I generally think they are well intended and good, but I tend to think they often have a bias." He then proceeded to describe another incident in which a car had hit his car at his residence. Eric H. believed the police officers who arrived at the scene were "confrontational" toward him, until he mentioned he "work[ed] for the city." When asked if "that will come into play in this case" if selected as a juror, Eric H. stated, "Probably not. I just . . . from personal experience? It's there. I don't have a hundred percent trust."
The prosecutor then asked Eric H. about his comment that the country's criminal justice system has the largest population of incarcerated people. The trial court interjected to alert the prosecutor that her allotted five minutes to question Eric H. had expired. The prosecutor then asked Eric H. if he could put aside his ideas about incarceration and consider the facts of this case. Eric H. replied that he could.
The defense attorney asked follow-up questions about Eric H.'s personal experiences with police officers. Eric H. replied that he otherwise has had good experiences with the police. He also stated that he would not hold police officers to a higher or lower standard were they to testify in this case. Eric H. affirmatively responded to questions about whether he was "comfortable with" the burden of proof and a defendant's right not to testify or present evidence in a criminal case.
Next, the defense attorney asked Eric H., "Any other reason we haven't discussed why you don't think you would be a fair juror in this case?" Eric H. responded, "Well, you know, I'll [sic] not an engineer. Well, you know, questions, they may be data-driven, and there are times that I would wish that one of you is asking a question that may not have been asked. So, I may be impatient." Finally, defense counsel asked Eric H. if he was "comfortable in following the process" and working with other jurors, to which he replied that he was.
The prosecutor exercised a peremptory challenge to excuse Eric H., and the defense objected to the challenge on Batson/Wheeler grounds. Outside the presence of the jury, the trial court heard Amos's Batson/Wheeler motion. The defense attorney argued Eric H., who was Black, belonged in a cognizable group under Batson and Wheeler. Counsel noted that the entire venire included only five Blacks, and the first group of 50 prospective jurors included only two Blacks. Counsel argued that Eric H. exhibited "pro prosecution jury traits," as evidenced by his employment with a public entity. Counsel stated Eric H. "had no grudges against" his friend being wrongfully arrested for a crime. He further argued that Eric H. stated he could remain fair in this case despite his negative encounters with police. Counsel also raised the issue of conducting a comparative juror analysis but suggested such an analysis could not be conducted because a jury had not been selected. Counsel requested the court reseat Eric H.
The trial court discussed the legal principles under Batson and Wheeler. The court explained that "the side asserting the challenge must state a prima facie showing by a preponderance of the evidence"; after such a showing is made, "[t]he burden then shifts to the other party to show that there are reasons for exercising the challenges other than systematic exclusion of members from a cognizable group"; and "[t]hen the Court makes its decision based on both sides' argument[s]." The court then "strongly encourage[d] [the prosecutor] . . . to make [her] showing and response."
The prosecutor argued Amos had not made a prima facie showing that the exercise of a peremptory challenge to excuse Eric H. was discriminatory. The prosecutor then attempted to refute the defense's characterization of Eric H.'s traits as "pro prosecution." The prosecutor explained, "looking through [Eric H.], in particular, and just go through it, he made a point to talk about his donations to the ACLU. He made a point of saying he belonged to many civil rights and environmental groups through the years, the Southern Poverty Law Center." With respect to Eric H.'s friend who had been mistakenly arrested, the prosecutor argued, "that could go either way, whether he thinks the government makes mistakes and people go to jail that should not otherwise be in jail."
The prosecutor next explained that "[Eric H.] further goes on to talk about how he had been treated with suspicion by police in Santa Rosa, twice in Berkeley, and in Pomona—Berkeley being obviously within our county. [¶] When he talked about the specific treatment up in Santa Rosa, he went on and on at length about the story of what happened to him, how the police didn't care to hear his side of the story until he said that he worked for a city. [¶] Also, he felt brushed off by them. He felt that he wasn't important to them until he claimed a city affiliation, and then he said they came around. [¶] He was specific about the fact that he didn't necessarily trust police officers because of his interaction with them. And given the fact that he's had four of these run-ins, I think that's not just arbitrary."
The prosecutor further stated that Eric H. had commented "about how we have the highest percentage of people behind bars than any other developed country, and major wealthy criminals get light sentences." She added, "So, he's clearly looking and thinking about the idea of incarceration, the difference between different classes as far as financial versus other people being put into custody."
Additionally, the prosecutor stated, "And most significantly, when I was talking to him, he said that he was data-driven, as he talked on and on, which is something that I did consider whether or not that would be an appropriate—that that type of dynamic that I would want within the jury pool, whether he would talk to other people, because he did give extremely long-winded answers. He said he was data-driven, but also because of that, he made a point of saying that he may be impatient. [¶] And so that definitely went into my analysis about whether or not he was an appropriate juror to hear this case, whether he would be impatient in hearing the evidence, as well as impatient in the jury room."
In response, the defense attorney argued that Eric H.'s negative experiences with police reflected "an unfortunate reality" for Black males in particular, who have similar experiences with police "at a higher rate than other people."
The trial court found Amos had made out a prima facie case that the prosecutor had exercised a peremptory challenge to excuse Eric H. based on race, citing the venire's racial composition.
The court then recounted Eric H.'s questionnaire responses and voir dire testimony. It observed Eric H. had "a number of neutral responses," "[h]e is a college graduate, and he did not seem to have any embedded opinions one way or the other about serving as a juror." The court stated it had reviewed Eric H.'s questionnaire in response to the prosecutor's comment that "he went on and on." The court recounted that each side had five minutes with each juror, but that the prosecutor had a pending question beyond the allotted time. The court then restated Eric H.'s criticism about the criminal justice system " 'hav[ing] the highest percentage of people behind bars,' " whereas " 'major financial criminals get light sentences.' " The court further highlighted that Eric H. has had "four encounters with the police" and had felt the police officers were "dismissive" towards him.
The court next explained it "has to determine whether there is a good faith in the peremptory challenge being for discriminatory purposes . . . and that the peremptory challenge exercised by the People was for a discriminatory purpose." It then concluded that "there is not a discriminatory purpose manifest based on these facts." The court accordingly denied Amos's Batson/Wheeler motion. The court agreed with defense counsel that it was too early to conduct a comparative juror analysis given that a jury had not been selected. It stated, however, that it would review any comparative juror analysis if proffered later in the proceedings. The court ordered the parties to retain all jurors' questionnaires for that purpose. Amos did not revisit his Batson/Wheeler objection thereafter at trial.
C. Analysis
Amos first contends the trial court improperly applied the preponderance of the evidence standard of proof when it conducted the first stage of the Batson/Wheeler analysis. Because the trial court ruled on the motion pursuant to the third stage of the analysis, the question whether Amos made a prima facie showing of racial discrimination is moot. (People v. Chism (2014) 58 Cal.4th 1266, 1314.)
Amos does not dispute that the prosecutor met her burden at the second step of articulating a race-neutral explanation for the peremptory strike against Eric H. He argues, however, that the trial court erred at the third step requiring a "sincere and reasoned attempt" to evaluate the credibility of the prosecutor's reasons. The court denied the motion without asking "probing questions" (Silva, supra, 25 Cal.4th at pp. 385-386) or conducting a comparative juror analysis, Amos contends.
We disagree. The trial court denied the motion only after reviewing Eric H.'s jury questionnaire, participating in and observing voir dire, and listening to the prosecutor's reasons supporting the strike and to any defense argument supporting the motion. Nothing in the record suggests that the trial court either was unaware of its duty to evaluate the credibility of the prosecutor's reasons or that it failed to fulfill that duty. Moreover, the trial court was not required to question the prosecutor or explain its findings on the record because, as we will explain, the prosecutor's reasons were neither inherently implausible nor unsupported by the record. Accordingly, we find substantial evidence supports the court's finding that the prosecutor's proffered reasons for striking Eric H. were not based on a discriminatory motive.
Much of Amos's argument on appeal is that the prosecutor got certain facts wrong during the discussion of the Batson/Wheeler motion involving Eric H. Specifically, Amos contends that, contrary to the prosecutor's statements, Eric H. had not "made a point" to explain, but rather simply noted without calling attention to, his support of the ACLU and "civil rights and environmental" organizations; did not talk "on and on" about a specific police encounter in Santa Rosa; did not say he was "data-driven"; and was not "extremely long-winded"; nor did he talk "on and on" in general.
According to the United States Supreme Court in Miller-El v. Dretke (2005) 545 U.S. 231 (Miller-El), the mischaracterization of a potential juror's testimony weighs against a prosecutor's credibility. (See id. at pp. 243-244, 247; accord People v. Arellano (2016) 245 Cal.App.4th 1139, 1169.) But as the Supreme Court clarified in Rice v. Collins (2006) 546 U.S. 333 (Rice), "[s]eizing on what can plausibly be viewed as an innocent transposition makes little headway toward the conclusion that the prosecutor's explanation was clearly not credible." (Id. at p. 340.) "In these two cases, the Supreme Court has thus drawn a fine distinction between a prosecutor's false statement that creates a new basis for a strike that otherwise would not exist and a prosecutor's inaccurate statement that does nothing to change the basis for the strike." (Jamerson v. Runnels (9th Cir. 2013) 713 F.3d 1218, 1232, fn. 7 (Jamerson); compare Miller-El, supra, 545 U.S. at pp. 243-244 [claiming that a juror indicated he would not vote for the death penalty if rehabilitation was possible when the juror clearly specified that he would vote for it] with Rice, supra, 546 U.S. at p. 340 [miscounting the number of jurors who were dismissed based on their youth but correctly reporting that the challenged juror was youthful].)
The call a trial court must make on this issue will sometimes be a close one, since "a prosecutor's 'mistake in good faith, such as an innocent transposition of juror information,' does not support a finding that the prosecutor is not credible." (Sifuentes v. Brazelton (9th Cir. 2016) 825 F.3d 506, 528; People v. O'Malley (2016) 62 Cal.4th 944, 980 ["prosecutor's mistaken reference . . . alone does not establish that the prosecutor's stated reasons were pretexts for discrimination"]; People v. Williams (2013) 56 Cal.4th 630, 661 [no Batson/Wheeler violation when the prosecutor excused a prospective juror for a factually erroneous but race-neutral reason]; People v. Williams (1997) 16 Cal.4th 153, 189 ["a genuine 'mistake' is a race-neutral reason"].) "[T]he purpose of a hearing on an objection to a peremptory challenge 'is not to test the prosecutor's memory but to determine whether the reasons given are genuine and race . . . neutral.' " (People v. Manibusan (2013) 58 Cal.4th 40, 78.)
But while the record here shows the prosecutor made some misstatements, we cannot second-guess the court's ultimate finding of a good faith basis for the challenged strike. The first alleged misstatement, as noted above, is the prosecutor's explanation that Eric H. "made a point" to discuss he had donated to the ACLU and had been involved with the Southern Poverty Law Center and "many civil rights and environmental groups over the years." Amos argues the phrase "made a point" improperly suggests Eric H. "called extra attention to" those affiliations, when all he had done was simply check boxes or list the names of the organizations on his questionnaire when asked if he had affiliations with civil, political, or charitable activities and special interest organizations. According to Amos, the prosecutor's statements were "literally false" and "plainly contrived."
While the phrase "made a point" perhaps was an "inapposite intensifier[]" or "imperfect word choice," as the People note, we see no reason to assume the prosecutor intentionally misrepresented the record. At worst, the use of the phrase "made a point" "can plausibly be viewed as an innocent transposition." (Rice, supra, 546 U.S. at p. 340.) Whether Eric H. "made a point" or responded directly to the questions without extra emphasis, the prosecutor correctly stated Eric H. had supported the ACLU, the Southern Poverty Law Center, and "many civil rights and environmental groups over the years." The prosecutor apparently cited Eric H.'s associations with those organizations to refute defense counsel's characterization of Eric H. as "pro prosecution." The parties do not dispute that those organizations such as the ACLU are typically viewed as politically "liberal" or "left." While we need not determine "whether the policies of certain organizations are liberal or not[,] the prosecutor's subjective distrust of jurors affiliated with such organizations—if genuine—is sufficient to support the juror challenge." (People v. Jones (2013) 57 Cal.4th 899, 919; id. at p. 918 [prosecutor properly challenged juror who exhibited " 'liberal tendencies' " based on her involvement with environmental groups and the Equal Employment Opportunity Commission]; see People v. Arellano, supra, 245 Cal.App.4th at p. 1165 ["a prosecutor is entitled to believe that people . . . with particular philosophical leanings are ill-suited to serve as jurors because they are not sympathetic to the prosecutor"]; see also People v. Barber (1988) 200 Cal.App.3d 378, 394 ["Peremptory challenges are often exercised against teachers by prosecutors on the belief they are deemed to be rather liberal"].) The prosecutor's reliance on Eric H.'s political outlook which she deemed not "pro prosecution" was thus plausible.
The second alleged misstatement concerns the prosecutor's description of Eric H. as talkative. The prosecutor stated Eric H. gave "extremely long-winded answers," "talked on and on," and "went on and on at length" concerning a police encounter in Santa Rosa. The Attorney General concedes it was an overstatement to say, as the prosecutor did, that Eric H. was "extremely long winded" but he hastens to add that, even if it was an exaggeration, that characterization of Eric H.'s style of answering voir dire questions is not so demonstrably at odds with the record that it should have led the court to infer the prosecutor's professed reasons for striking him were pretextual. We agree. Because so much turns on real-time observation in the courtroom, this particular issue is a good illustration of why we must exercise restraint before second-guessing the trial judge's assessment on appeal, even while we scrutinize the record carefully.
At step three of a Batson/Wheeler motion, the trial court may accept as genuine reasons based on "the prospective jurors' body language or manner of answering questions as a basis for rebutting a prima facie case" of exclusion for group bias. (People v. Fuentes (1991) 54 Cal.3d 707, 715.) "A prospective juror may be excused upon facial expressions, gestures, hunches, and even for arbitrary or idiosyncratic reasons." (Lenix, supra, 44 Cal.4th at p. 613.) "In the trial court, however, advocates and trial judges watch and listen as the answer is delivered. Myriad subtle nuances may shape it, including attitude, attention, interest, body language, facial expression and eye contact. 'Even an inflection in the voice can make a difference in the meaning.' " (Id. at p. 622.) "This is, of course, one reason why appellate courts in this area of law generally give great deference to the trial court, which saw and heard the entire voir dire proceedings." (People v. Reynoso (2003) 31 Cal.4th 903, 917-918 & fn. 4 (Reynoso).)
We cannot verify on the appellate transcript alone the prosecutor's personal observations of Eric H.'s demeanor, inflection, or manner of speaking. For example, the record does not reveal whether Eric H. spoke rapidly or slowly. It is striking that neither defense counsel nor the trial court—which acknowledged the prosecutor's comments that Eric H. "talked on and on" and noted its familiarity with the record on this particular point—contradicted the prosecutor's comments about Eric H. being verbose. We may infer that the trial court agreed to some extent with the prosecutor's descriptions (see People v. Elliott (2012) 53 Cal.4th 535, 569) and that such descriptions were accurate (see People v. Adanandus (2007) 157 Cal.App.4th 496, 510). Especially relevant here is the principle that a trial court need not "make specific or detailed comments for the record to justify every instance in which a prosecutor's race-neutral reason for exercising a peremptory challenge is being accepted by the court as genuine" (Reynoso, supra, 31 Cal.4th at p. 919), since that principle is particularly important to bear in mind "where the prosecutor's race-neutral reason . . . is based on the prospective juror's demeanor, or similar intangible factors." (Ibid.)
Despite having not made the point in the trial court, Amos now argues that the record objectively refutes the prosecutor's statements about Eric H.'s manner of answering questions. In his opening brief, Amos provides a table in which he lists the number of questions posed to each of the 12 seated jurors during voir dire and the number of lines the jurors' statements occupy in the reporter's transcript, as compared to that of Eric H.'s testimony. To the extent Amos's rubric and computations are helpful in evaluating whether Eric H. was "long-winded" or "talked on and on," they undermine Amos's assertions. According to Amos's table, Eric H. was asked the average number of questions posed to the seated jurors (10), but his testimony occupied more lines in the reporter's transcript (79) than the average number of lines occupied by the seated jurors (49). By Amos's own "objective comparison," therefore, his appellate challenge to the prosecutor's observations about Eric H.'s manner of testifying is unconvincing.
There is, to be sure, some indication in the record that Eric H. did discuss in detail his specific experiences with police officers. It is true that in looking at the bare transcript, Eric H.'s testimony about the Santa Rosa incident was responsive to the question asked and does not appear to be excessive. But in another instance Eric H. volunteered information that was not directly asked of him. For example, after Eric H. testified about that incident, the prosecutor asked, "Do you hold any opinions or feelings if there were police officers who were going to come in and testify?" Eric H. responded that he believed police officers "are well intended and good," but that he thought "they often have a bias." Eric H. then proceeded to discuss at some length a separate incident in which he believed police officers had been "confrontational" towards him. Afterwards, the prosecutor attempted to ask Eric H. about his other questionnaire responses, at which time the trial court alerted the prosecutor that her five minutes with Eric H. had expired. Given Eric H.'s detailed testimony about his personal encounters with police shortly before the prosecutor's allotted time had expired, the prosecutor could have genuinely perceived Eric H. as "long winded."
Mistaken or not about Eric H.'s manner of answering questions, the prosecutor accurately recounted Eric H.'s negative experiences with police. The record shows that when the prosecutor mentioned the Santa Rosa incident, she was reacting mainly to the fact that Eric H. had those negative experiences and mistrusted police. The prosecutor explained: Eric H. "felt brushed off by [the police officers]. He felt that he wasn't important to them until he claimed a city affiliation, and then he said they came around. [¶] He was specific about the fact that he didn't necessarily trust police officers because of his interaction with them. And given the fact that he's had four of these run-ins, I think that's not just arbitrary." The trial court implicitly accepted this justification by acknowledging that Eric H. "ha[d] four encounters with the police," who were "dismissive" towards him at times.
On this record, we think the prosecutor's reliance on Eric H.'s personal encounters with police officers was a plausible justification for excusing him. Our Supreme Court has upheld peremptory strikes of jurors based on their experiences or perceptions of law enforcement. (See, e.g., People v. Winbush (2017) 2 Cal.5th 402, 436-437 ["negative attitude toward law enforcement" or "negative experience with law enforcement" is "a valid basis for exclusion"]; id. at p. 439 [" "distrust of the criminal justice system is a race-neutral basis for excusal' "]; People v. Booker (2011) 51 Cal.4th 141, 167, fn. 13 ["A negative experience with the criminal justice system is a valid neutral reason for a peremptory challenge"]; Lenix, supra, 44 Cal.4th at p. 628 [" 'We have repeatedly upheld peremptory challenges made on the basis of a prospective juror's negative experience with law enforcement' "].) "Prosecutors are understandably concerned about retaining such persons on criminal juries." (People v. Calvin (2008) 159 Cal.App.4th 1377, 1386 (Calvin).) Based on the foregoing authorities, the trial court was correct to accept the prosecutor's reliance on Eric H.'s negative encounters with police as having been offered in good faith, without questioning the prosecutor further about it. (Silva, supra, 25 Cal.4th at p. 386.) Amos argues that, with Black males, these types of negative experiences tend to be so prevalent that it is difficult to accept the prosecutor's reliance on Eric H.'s story about his past negative encounters with law enforcement as anything other than evidence of racial bias. We might agree that striking a Black venireperson for this reason could have some probative force as a proxy for racial bias in some circumstances—but on a record where none of the prosecutor's professed reasons withstands scrutiny, and it merely reinforces an inference of pretext that clearly emerges from the totality of the circumstances. That is not this case.
The final alleged misstatement was when the prosecutor stated that Eric H. "said he was data-driven." During voir dire, defense counsel asked Eric H., "Any other reason we haven't discussed why you don't think you would be fair juror in this case?" Eric H. responded, "Well, you know, I'll [sic] not an engineer. Well, you know, questions they may be data-driven, and there are times that I would wish that one of you is asking a question that may not have been asked. So, I may be impatient." Amos is correct that Eric H. did not describe himself as "data-driven"; rather, he stated the lawyers' questions "may be data-driven." The parties, however, agree that Eric H.'s response was "frankly unclear," "cryptic," or "nonresponsive." Given the ambiguity of Eric H.'s response, it is plausible that the prosecutor simply made an honest mistake in attributing the "data-driven" description to Eric H. himself.
While the prosecutor may have misunderstood the "data-driven" testimony, it appears she took issue with it insofar as it related to Eric H.'s statement that he was "impatient." The prosecutor explained, "[Eric H.] said he was data-driven, but also because of that, he made a point of saying that he may be impatient. [¶] And so that definitely went into my analysis about whether or not he was an appropriate juror to hear this case, whether he would be impatient in hearing the evidence, as well as impatient in the jury room." After hearing Eric H.'s self-described impatience, the prosecutor could reasonably harbor a concern that Eric H. would not be completely open-minded to hearing the evidence presented at trial or other jurors' views. (See Lenix, supra, 44 Cal.4th at p. 623 [an "advocate is entitled to consider a panelist's willingness to consider competing views [and] openness to different opinions and experiences"]; see also People v. Watson (2008) 43 Cal.4th 652, 681 [peremptory challenge supported by relevant race-neutral concerns where juror "appeared to be too stubborn and opinionated to appropriately participate in jury deliberations"].)
In short, while the prosecutor misspoke at times, her statements fell on the Rice, not Miller-El, side of the line. They were not "false statement[s] that create[d] a new basis for a strike that otherwise would not exist." (Jamerson, supra, 713 F.3d at p. 1232, fn. 7.) Rather, any mistaken statements were minor deviations from the record and did "nothing to change the bas[e]s for the strike." (Ibid.) And, as we explained above, those bases were well accepted as a reason to strike a juror and supported by the record. Accordingly, no more was required of the trial court in assessing whether the prosecutor's reasons were genuine. (Silva, supra, 25 Cal.4th at p. 386.)
Next, Amos argues that some of the prosecutor's stated reasons were unreasonable and therefore pretextual, although supported by the record. He argues that the prosecutor "extrapolated from [Eric H.'s] specific comment about possible impatience with lawyers to an unsupported general concern that 'he would be impatient in viewing the evidence, as well as impatient in the jury room.' " He further contends that Amos's concern that lawyers fail to ask relevant questions "is a view shared by a high percentage of the U.S. population, i.e., that lawyers can be self-absorbed and obtuse." We are unpersuaded.
Under Batson/Wheeler analysis, "[t]he proper focus . . . is on the subjective genuineness of the race-neutral reasons given for the peremptory challenge, not on the objective reasonableness of those reasons." (Reynoso, supra, 31 Cal.4th at p. 924; Hardy, supra, 5 Cal.5th at p. 76.) Moreover, a " ' "legitimate reason" ' " for a challenge within the meaning of the Batson/Wheeler inquiry does not mean " 'a reason that makes sense' "; it means " 'a reason that does not deny equal protection.' " (Reynoso, at p. 924.) As explained above, Eric H.'s testimony that he was "impatient" when asked if he would be a fair juror could reasonably trigger a concern that he would not be sufficiently open-minded to the evidence presented or other jurors' perspectives. Amos's disagreement with the prosecutor's negative interpretation of Eric H.'s testimony does not render her reasoning pretextual.
Amos also argues that the prosecutor's reliance on Eric H.'s criticism of the criminal justice system was implausible. As noted above, Eric H. criticized the criminal justice system for having the largest population of incarcerated people and allowing "major financial criminals" to receive lighter sentences. The prosecutor explained that Eric H. was "clearly looking and thinking about the idea of incarceration, the difference between different classes as far as financial versus other people being put into custody." Amos argues that Eric H.'s views "can hardly be viewed as a negative characteristic," especially because those views are shared by a majority of the people in the State of California. We reject these contentions.
It is settled that "skepticism about the fairness of the criminal justice system is a valid ground for excusing jurors." (Calvin, supra, 159 Cal.App.4th at p. 1386; see People v. Williams (2013) 58 Cal.4th 197, 284 [proper to challenge juror who stated among other things African-Americans were " 'rarely' " treated " 'fairly' " in the court system]; see also People v. Cornwell (2005) 37 Cal.4th 50, 70, disapproved on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) The reason remains a neutral ground notwithstanding the juror's assurances that the beliefs would not impact the juror. (See People v. Avila (2006) 38 Cal.4th 491, 554-555 [reasons other than racial bias for challenge included juror's "experience with her brother's involvement in the criminal justice system, notwithstanding [her] assurances that her prior experiences would not carry over to this case if she were chosen as a juror"].) Nor does the reason become illegitimate simply because Eric H.'s views may be consistent with the broad support many California voters have expressed about the need for criminal justice reform, as Amos contends. It is speculative to equate support for criminal justice reform generally—which may be rooted in any number of concerns, including fiscal concerns—with skepticism about the fairness of the criminal justice system more specifically.
Additionally, Amos argues the trial court erred in failing to conduct a comparative juror analysis in its assessment of the prosecutor's credibility. Under this type of analysis, a court reviews the reasons given for the challenge as to the challenged juror and then looks to see if those reasons would apply equally to other jurors who were not challenged. (See People v. Lomax (2010) 49 Cal.4th 530, 571, fn. 14.) If there are two jurors who have given very similar responses, one of whom belongs to the cognizable class and one of whom does not, and the party has only challenged the juror in the cognizable class on the purported basis of a response given by both jurors, then an inference can arise that the purported basis of the challenge is a pretext designed to conceal a discriminatory purpose. (See Miller-El, supra, 545 U.S. at p. 241; People v. DeHoyos (2013) 57 Cal.4th 79, 109; Lenix, supra, 44 Cal.4th at p. 621.)
To prove such a claim, jurors used for comparison need not be "identical in all respects." (People v. DeHoyos, supra, 57 Cal.4th at p. 107.) Rather, "a defendant must engage in a careful side-by-side comparative analysis to demonstrate that the dismissed and retained jurors were 'similarly situated.' " (Calvin, supra, 159 Cal.App.4th at p. 1389, fn. 4.) Jurors who give similar responses to one question are not similarly situated where the jurors do not otherwise have a "substantially similar combination of responses." (DeHoyos, at p. 107.) Comparative analysis on a "high level of generality" should be eschewed. (People v. Montes (2014) 58 Cal.4th 809, 851.) "Overlapping responses alone are not enough to demonstrate purposeful discrimination." (Calvin, at p. 1389, fn. 4.)
"[E]vidence of comparative juror analysis must be considered in the trial court and even for the first time on appeal if relied upon by the defendant and the record is adequate to permit the urged comparisons." (Lenix, supra, 44 Cal.4th at p. 622.) "Where, as here, the comparative analysis was not made at trial, 'the prosecutor generally has not provided, and was not asked to provide, an explanation for nonchallenges.' " (People v. O'Malley, supra, 62 Cal.4th at p. 976.) "Therefore, 'an appellate court must be mindful that an exploration of the alleged similarities at the time of trial might have shown that the jurors were not really comparable.' " (Ibid.) Accordingly, "[w]hen a defendant asks for comparative juror analysis for the first time on appeal, we have held that 'such evidence will be considered in view of the deference accorded the trial court's ultimate finding of no discriminatory intent.' " (Ibid.)
Initially, we disagree with Amos that the trial court erred in not conducting a comparative juror analysis at the time of his Batson/Wheeler motion. Both defense counsel and the court agreed that a comparative analysis would be premature because jury selection had not been completed. The court then stated it would remain open to conducting the analysis if proffered at a later time. Amos did not revisit his Batson/Wheeler motion or make such a proffer. Thus, contrary to Amos's assertions, the court had "no sua sponte duty to revisit [the] earlier Batson/Wheeler challenge[] that it had previously denied . . . ." (People v. Avila, supra, 38 Cal.4th at p. 552.)
In any event, Amos's attempt at comparative juror analysis on appeal with respect to Eric H. is unavailing. Amos argues that, like Eric H., some of the seated jurors made donations to the ACLU or expressed skepticism of police officers. Amos contends that the prosecutor's decision to excuse Eric H., but not the seated jurors who shared those similar responses, indicates the prosecutor's proffered reasons were pretextual. We disagree. None of the jurors brought to our attention by Amos expressed a substantially similar combination of responses provided by Eric H. First, although five of the seated jurors stated they had donated to or otherwise supported the ACLU, their other responses were not materially similar in the respects significant to the prosecutor's stated basis for the challenge. For example, with the exception of Juror No. 12, none of those jurors expressed distrust of law enforcement or other traits of Eric H. the prosecutor asserted.
Further, while other seated jurors, including Juror No. 12, also expressed skepticism of the criminal justice system or law enforcement, such opinions did not derive from personal encounters with police. In contrast, Eric H. had four negative personal encounters with police. Thus, as the People note, "the prosecutor could reasonably have concluded that the intensity of [Eric H.'s] feelings toward the criminal justice system was likely to be materially greater than that of the four jurors that she did not challenge." While Amos dismisses the People's reasoning as "speculative," there is a meaningful difference between a "theoretical perception" of police conduct and personal experiences of such conduct. (See People v. Avila, supra, 38 Cal.4th at p. 545 ["The prosecutor's challenge to [juror] was based on her personal experience that police officers lied, not on a theoretical perception that she, a member of a minority group, might view the police with distrust"].) Further, it appears that Eric H. expressed that his mistrust of police could not be completely shaken. Although Eric H. testified his experiences with police would "[p]robably not" "come into play" if selected as a juror, he later explained that "just . . . from personal experience . . . [i]t's there. I don't have a hundred percent trust."
Amos also asserts that Eric H. and the seated jurors similarly "were manifestly respectable and responsible members of the community, either gainfully employed . . . or aspiring students . . . , [or] . . . retired . . . ." The argument misses the point. While it is true Eric H. and the seated jurors shared this general similarity, the differences between them seem far more significant, particularly with respect to Eric H.'s personal experiences with police, as explained above. Accordingly, Amos's comparative juror analysis does not establish that the prosecutor's asserted reasons for dismissing Eric H. were pretextual.
Finally, we find unpersuasive Amos's reliance on Silva, supra, 25 Cal.4th 345; Gutierrez, supra, 2 Cal.5th 1150; and Flowers v. Mississippi (2019) 588 U.S.___ (Flowers) for the assertion that "[t]he trial court defaulted on its duty of inquiry and adjudication at step three" of the Batson/Wheeler inquiry. Those cases are readily distinguishable and therefore do not support Amos's position.
In Silva, supra, 25 Cal.4th 345, a prosecutor dismissed a Hispanic juror, claiming he had stated, " 'he would look for other options' " when asked if he could vote for the death penalty and he was " 'an extremely aggressive person' " and might cause the jury to deadlock. (Id. at p. 376.) Neither was true. The juror actually stated he was " '[p]ossibly slightly for [the death penalty]' " and that he could return the death penalty if the defendant " 'earned' " it. (Id. at p. 377.) The Supreme Court explained that, "[a]lthough an isolated mistake or misstatement that the trial court recognizes as such is generally insufficient to demonstrate discriminatory intent [citation], it is another matter altogether when, as here, the record of voir dire provides no support for the prosecutor's stated reasons for exercising a peremptory challenge and the trial court has failed to probe the issue [citations]." (Id. at p. 385.) The Court therefore was "unable to conclude that the trial court met its obligations to make 'a sincere and reasoned attempt to evaluate the prosecutor's explanation' [citation] and to clearly express its findings." (Ibid.)
Silva involved the stark situation of trial court inaction in the face of an "obvious gap" between the reasons given by the prosecutor and the facts of the record. (Silva, supra, 25 Cal.4th at p. 385.) Because the explanations had no connection to the facts shown by the record, they were clearly insufficient to carry the prosecutor's burden of showing good faith. Here, there was no such gap between the record and the prosecutor's reasons. As explained above, the prosecutor's alleged misstatements were much more subtle, not so detached from the record, and therefore easily attributable to an honest mistake. Importantly, the prosecutor's misstatements did not alter the bases for the strike; the justifications remained, notwithstanding the misstatements. (See Jamerson, supra, 713 F.3d at p. 1232, fn. 7.) Further, as discussed above, those justifications were plausible and supported by the record. Accordingly, the trial court was not required to probe the justifications any further or to make statements on the record explaining precisely why the court accepted the prosecutor's reason as credible. (Silva, at pp. 385-386.) Indeed, the Silva court expressly distinguished its own facts where "the record of voir dire provides no support for the prosecutor's stated reasons" from the situation involving "an isolated mistake" that "is generally insufficient to demonstrate discriminatory intent." (Ibid.)
That the trial court did not address in detail each of the numerous reasons the prosecutor gave for excusing Eric H. does not mean it failed to make a sincere and reasoned evaluation under Silva. A trial court is not required to make specific or detailed comments for the record to justify every instance in which it accepts a prosecutor's reasons as genuine. (People v. DeHoyos, supra, 57 Cal.4th at p. 102; People v. Vines, supra, 51 Cal.4th at p. 848.) In cases like this one, trial courts may fail to discuss a mistake by the prosecutor and yet there still can be a sufficient basis to find that the court did make a sincere and reasoned effort. While the trial court in this case could have done more to make a fuller record, the record shows the court was familiar with Eric H.'s jury questionnaire and voir dire testimony and considered the prosecutor's reasons, which were plausible and supported by the record. Thus, we conclude the trial court made a sincere and reasoned effort to assess the credibility of the prosecutor's reasons.
Amos's reliance on Gutierrez is also misplaced. In Gutierrez, the juror in question had stated she was unaware that gangs were active in the City of Wasco, where she resided, and the prosecutor used a peremptory challenge to excuse her without asking any follow-up questions. (Gutierrez, supra, 2 Cal.5th at p. 1160.) When the defense objected on Batson/Wheeler grounds, the prosecutor explained, " '[S]he's from Wasco and she said that she's not aware of any gang activity going on in Wasco, and I was unsatisfied by some of her other answers as to how she would respond when she hears that [a prosecution witness] is from a . . . gang . . . out of Wasco.' " (Id. at p. 1160.) No such " 'other answers' " were ever identified, either at trial or on appeal. (Ibid.) In evaluating the prosecution's explanation, the trial court remarked that the juror was excused due to the " 'Wasco issue and also the lack of life experience,' " even though the prosecutor had not cited a lack of life experience as a reason for the peremptory challenge. (Id. at p. 1161.)
Our Supreme Court observed it was not obvious why the prosecutor's stated reason for peremptory challenge—the juror's unawareness of gang activity in Wasco would indicate a bias against a member of a gang based in Wasco. (Gutierrez, supra, 2 Cal.5th at pp. 1169-1170.) The Court explained that " '[w]hen the prosecutor's stated reasons are either unsupported by the record, inherently implausible, or both, more is required of the trial court than a global finding that the reasons appear sufficient.' " (Id. at p. 1171.) But the trial court never clarified why it accepted the prosecutor's stated reason as an honest one. (Ibid.) Further, in denying the defendant's Batson/Wheeler motion, the trial court cited an additional reason not proffered by the prosecutor. (Id. at pp. 1171-1172.) Under those circumstances, the high court concluded the trial court had not "made a reasoned attempt to determine whether the justification was a credible one." (Id. at p. 1172.)
The focus of Gutierrez was on the trial court's failure to conduct a " 'sincere and reasoned attempt' to evaluate the prosecutor's justification," where the justifications were either not self-evident or unsupported, and where the trial court cited a reason not proffered by the prosecutor. (Gutierrez, supra, 2 Cal.5th at pp. 1159, 1170-1171.) Here, the prosecutor's reasons for excusing Eric H. were self-evident, and to the extent they were not, the prosecutor fully explained her reasons for the challenges. Amos's disagreement with those reasons does not render those reasons pretextual or unsupported by the record. Accordingly, we disagree with Amos that the trial court failed to conduct a " 'sincere and reasoned attempt' to evaluate the prosecutor's justification[s]." (Gutierrez, at p. 1159.)
For similar reasons, Amos's reliance on Dolphy v. Mantello (2d Cir. 2009) 552 F.3d 236 is also misplaced. There, the prosecutor struck the only Black juror because he was "overweight." (Id. at p. 237.) The trial court denied the defendant's motion for a mistrial on Batson grounds. (Id. at pp. 237-238.) The Second Circuit found the trial court unreasonably failed to make a credibility finding under the third step of Batson. (Id. at p. 239.) It explained the prosecutor's proffered explanation was facially nondiscriminatory but "rested precariously on an intuited correlation between body fat and sympathy for persons accused of crimes (seemingly without regard to the weight of the defendant)." (Ibid.) Further, the trial court's ruling was made "without inquiry or finding, as though the ground for making the strike was self-evident." (Ibid.) --------
In Flowers, the high court applied settled Batson analysis to a case involving "extraordinary facts" that are not remotely close to those in Amos's case. (Flowers, supra, 139 S.Ct. at pp. 2235-2236.) Flowers had been tried six separate times for the same murders. (Id. at p. 2234.) Four times he was convicted and sentenced to death. The convictions following the first three trials were reversed by the Mississippi Supreme Court for racially discriminatory use of peremptory challenges; the conviction following the sixth trial, which was the one at issue before the Supreme Court in Flowers, was affirmed by the Mississippi Supreme Court. (Id. at pp. 2235-2236.) In the fourth and fifth trials, the jurors could not reach a verdict. (Id. at p. 2237.) In all of the trials, despite his demonstrable commitment to sweeping Blacks from any jury in a prosecution of Flowers, the state was represented by the same prosecutor. (Id. at pp. 2234-2235.) In the six trials combined, the prosecutor exercised its peremptory challenges to strike 41 of the 42 Black prospective jurors. (Id. at p. 2235.) In the sixth trial, the prosecutor struck five of the six Black prospective jurors, had "engaged in dramatically disparate questioning of black and white prospective jurors," and struck at least one prospective juror who was similarly situated to White prospective jurors who were not struck. (Ibid.)
Amos's case bears no resemblance to Flowers. For one, this case does not involve similar statistics evincing a clear pattern of racially discriminatory challenges. Further, as we have explained, the prosecutor's misstatements in this case were relatively minor and can plausibly be viewed as innocuous. Indeed, as the Flowers court explained, "the back and forth of a Batson hearing can be hurried, and prosecutors can make mistakes when providing explanations. That is entirely understandable, and mistaken explanations should not be confused with racial discrimination. But when considered with other evidence of discrimination, a series of factually inaccurate explanations for striking black prospective jurors can be telling. So it is here." (Id. at p. 2250.) The law requires vigilance, in the trial court and on appeal, when assessing the possibility that a prosecutor's use of peremptory challenges was pretextual, but we find that this cautionary observation in Flowers is inapt in this case, on this record.
We conclude substantial evidence supports the court's ruling denying Amos's Batson/Wheeler motion. We therefore accord its decision the deference to which it is entitled. (Lenix, supra, 44 Cal.4th at pp. 613-614.)
III. DISPOSITION
The judgment is affirmed.
STREETER, J. WE CONCUR: POLLAK, P. J.
BROWN, J.