Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Contra Costa County Super. Ct. No. 5-051613-8
Haerle, J.
I. INTRODUCTION
After a jury trial, appellant was convicted on two of three charged counts and acquitted on the third. The court found two prior theft conviction allegations to be true. It sentenced him to a total of four years in state prison, that sentence being composed of the two-year term on the felony theft count plus a consecutive two-year term for a probation violation in another case. Appellant appeals, claiming that the prosecution’s use of peremptory challenges against two African-American and two Latino prospective jurors violated his constitutional rights, and that the trial court thus erred in denying his Batson-Wheeler motion. We disagree, and hence affirm the judgment.
Batson v. Kentucky (1986) 476 U.S. 79 (Batson); People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler).
II. FACTUAL AND PROCEDURAL BACKGROUND
Bearing in mind the issue presented by this appeal, we will summarize the factual basis for the charges against appellant in very abbreviated form.
Appellant was seen taking two miniature television sets from a Tower Mart store in Bay Point on June 9, 2007, and then transporting them away from the store on his bicycle. The witness who saw this reported it to Tower Mart, and a security guard there, one Jerry Rollins, drove around the adjoining neighborhood and eventually found appellant. Rollins, who was armed and wearing a uniform with a badge, asked through his car window for appellant to stop and talk, but appellant continued riding his bicycle and ignoring Rollins’ request. Eventually, Rollins got out of his car, tackled appellant, tried to handcuff him, and told appellant he was under arrest. Appellant resisted, got up, and was tackled again by Rollins, who then brought him to his security vehicle. Appellant twice tried to walk away from Rollins, but was brought back each time, after which a sheriff’s deputy arrived and arrested him. Appellant then gave a false name to Rollins and the deputy.
On July 20, 2007, the Contra Costa County District Attorney filed an information charging appellant with three counts. Count one charged second-degree commercial burglary (Pen. Code, §§ 459 & 460, subd. (b)); count two charged, as a felony, petty theft with a prior theft conviction (§§ 484 & 666); and count three charged, as a misdemeanor, giving false information to a peace officer. (§ 148.9, subd. (a).) The information also alleged ten prior convictions of appellant.
All statutory references are to the Penal Code.
After a two-day jury trial, the jury convicted appellant on counts two and three, but acquitted him on count one. The court found two of the prior theft allegations to be true.
On October 26, 2007, the court sentenced appellant to the two-year midterm on count two, imposed no sentence for the count three conviction, and imposed a consecutive two-year sentence for appellant’s probation violation in an entirely separate case. Appellant received 357 days of custody credits.
That case, No. 5-051613-8, is not a part of this appeal, and appellant raises no issue regarding either it or the additional sentence imposed on him deriving from it.
Appellant filed a notice of appeal the same day.
III. DISCUSSION
A. The Applicable Law and our Standard of Review.
It is first appropriate to discuss the applicable law and our standard of review. Our Supreme Court has recently summarized both as follows: “Both the state and federal Constitutions prohibit the use of peremptory challenges to exclude prospective jurors based on race or gender. [Citations.] Such a use of peremptories by the prosecution ‘violates the right of a criminal defendant to trial by a jury drawn from a representative cross-section of the community under article I, section 16 of the California Constitution. [Citations.] Such a practice also violates the defendant’s right to equal protection under the Fourteenth Amendment to the United States Constitution.’ [Citation.] [¶] There is a rebuttable presumption that a peremptory challenge is being exercised properly, and the burden is on the opposing party to demonstrate impermissible discrimination. [Citations.] To do so, a defendant must first ‘make out a prima facie case “by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose.” [Citation.] Second, once the defendant has made out a prima facie case, the “burden shifts to the State to explain adequately the racial [or gender] exclusion” by offering permissible race-neutral [or gender-neutral] justifications for the strikes. [Citations.] Third, “[i]f a race-neutral [or gender-neutral] explanation is tendered, the trial court must then decide . . . whether the opponent of the strike has proved purposeful . . . discrimination.” [Citation.]’ [Citation.] The same three-step procedure applies to state constitutional claims. [Citation.]” (People v. Bonilla (2007) 41 Cal.4th 313, 341 (Bonilla); see also, People v. Bell (2007) 40 Cal.4th 582, 596; People v. Howard (2008) 42 Cal.4th 1000, 1017; and People v. Adanandus (2007) 157 Cal.App.4th 496, 501-502.)
B. The Circumstances of the Four Peremptory Challenges.
In his brief to us, appellant contends that the trial court erred in not concluding that the prosecution had wrongly exercised four peremptory challenges in excusing two African-American and two Latino prospective jurors. The trial court found that a prima facie case of possible discriminatory motive had been made with respect to one of the African-American and one of the Latino prospective jurors, but not regarding the other two. It then found that the prosecutor’s explanation of his reasons for excusing the two jurors as to whom the trial court had found a prima facie case to be reasonable, and thus denied appellant’s Batson-Wheeler motion.
Appellant filed no reply brief in this case.
The factual circumstances regarding the excused prospective jurors were varied. On the first day of the jury selection, September 19, 2007, after the first 12 prospective jurors were seated in the jury box, the prosecutor used three of his ten peremptory challenges to excuse Jurors Ms. M., an African-American, and Mr. C. and Ms. L., both apparently Latinos. After others were seated, the prosecutor excused the second African-American, Ms. P-B. At that point, appellant’s trial counsel stated that she wanted to make a motion and the court, counsel and the court reporter retired to the court’s chambers, where the following dialogue occurred:
“MS. DAVIS (Defense counsel): “With respect to the African-American prospective jurors, Mr. Endries has excused two of I think four, Ms. P.-B. and Ms. M., and I think that at that point, a prima facie case has been shown. Also, with respect to the Hispanic prospective jurors, I don’t recall Mr. Endries asking any questions of Mr. C. or Ms. L. during his questioning. In addition to that, he also didn’t ask any questions of Ms. P.-B., nor did Ms. M. give any answers that would give him a reason, nor did any of these prospective jurors give him a reason to excuse them, and therefore, I think the Court can assume that they are excused because of their race.
“THE COURT: Okay. the only -- I’m confused about Ms. M. I did not perceive that she was African-American. I wrote -- you know what I wrote, I put white and I put black because I can’t tell. I just put both.
“All right. But with respect to Ms. P.-B., I am perplexed, and the Court finds a prima facie case, and I will ask you to respond to it with regard to Ms. P.-B.
“MR. ENDRIES (Prosecutor): I did ask questions of Ms. P.-B. -- actually, just to correct the record, it wasn’t anything I think in her response that led me to excuse her. But she did appear to be the only juror that I’ve seen that appeared to be kind of not paying attention. She’s been sitting with her arms crossed, a defensive kind of pose, and I wasn’t satisfied with -- I felt that she wasn’t interested in what was going on, and I didn’t have any confidence in her ability to be a fair and unbiased juror. I’m satisfied with the other members of the African-American jurors, Ms. B. and Juror No. 7.
“THE COURT: That’s true. I remember there are more. And what about the -- now, with regard to the Hispanic -- with regard to Mr. C., I can see excusing him because his accent was very thick. But, yeah, I could see excusing him. On the other hand, Ms. L.?
“MR. ENDRIES: Ms. L. and Ms. M. were removed for the same reason. They’re in opposition to the death penalty, which to me, that is the law; the death penalty is the law. A person who is not willing to impose the death penalty is basically not willing to follow the law. And I don’t have time to get into all the other circumstances of which they may have a moral quandary as far as following the law, and so out of an abundance of caution, I’m excusing them both.”
After further discussion about another juror, an Asian-American––as to which more below––the court then gave its ruling:
“THE COURT: Okay. I didn’t -- I wasn’t paying attention to Ms. P.-B. about the things you’re saying. I wasn’t paying attention, so maybe you’re right about her body language. All right.
“The Court accepts the Prosecutor’s response that they were not race based and will not grant the Wheeler motion at this time. And we’re going back out there. The Court also recognizes that we’ve only exercised -- the PD has only exercised three challenges and has a lot more, and so you wouldn’t be prejudiced at this point.”
Thereafter, the prosecution accepted the panel “as presently constituted,” i.e., exercised no more of its peremptory challenges. The defense did not, however, and excused one of the two remaining African-American jurors, Ms. B.
C. The Trial Court’s Ruling did not Contravene Batson-Wheeler.
In his brief to us, appellant makes almost no mention of the prosecution’s challenge of Latino prospective juror Mr. C., and we will follow suit. We only note in that regard that the trial court (1) did not find a prima facie case had been made regarding Mr. C. and (2) indicated it thought he might have difficulty understanding what was being said in court, or communicating with others in the jury room, “because his accent was very thick.” Appellant appears not to challenge this reasoning.
With regard to one of the African-American prospective jurors excused, Ms. P.-B., as the excerpt above indicates, the prosecutor justified his challenge of her on the basis that she appeared “to be the only juror that I’ve seen that appeared to be kind of not paying attention. She’s been sitting with her arms crossed, a defensive kind of pose, and . . . I felt that she wasn’t interested in what was going on . . . .”
Although the trial court conceded that it “wasn’t paying attention to Ms. P.-B. about the things you’re saying,” defense counsel at no point argued against the prosecution’s description of prospective juror P.-B. On appeal, appellant argues that, because “the trial court did not confirm that there was anything ‘defensive’ about Ms. P.-B.’s body language,” an inference arises that “the challenges were, in fact, based on race . . . .” This is incorrect; lack of confirmation by the trial court is simply not tantamount to a rebuttal regarding the motivation for the challenge. Again, the standard applicable here is that there is a “‘rebuttable presumption that a peremptory challenge is being exercised properly . . . .’” (Bonilla, supra, 41 Cal.4that p. 341, emphasis supplied; see also, People v. Griffin (2004) 33 Cal.4th 536, 554-555, and People v. Johnson (2003) 30 Cal.4th 1302, 1309, overruled on other grounds in Johnson v. California (2005) 545 U.S. 162.)
Appellant’s reliance on Snyder v. Louisiana (2008) ___U.S. ___; [128 S.Ct. 1203] is misplaced. In that case, the prosecutor offered two reasons for challenging a minority prospective juror, the demeanor of the individual and the fact that he might miss some days of student teaching if selected. The trial judge “allowed the challenge without explanation” (id. at p. 1209), but the United States Supreme Court reversed because of the suspicious and pretextual nature of the second explanation provided by the prosecution. (Id. at pp. 1211, 1212.) It said nothing regarding the demeanor explanation and thus is not, as appellant argues, authority for the proposition that, when a trial court does not confirm a prosecutor’s reliance on a prospective juror’s body language, that explanation is somehow rebutted.
That leaves two other prospective jurors excused by the prosecution, African-American prospective juror Ms. M. and Latino prospective juror Ms. L. The trial court found that there was a prima facie case as to Ms. L., but not as to Ms. M. However, the prosecutor provided the same explanation as to both, i.e., that they “were removed for the same reason. They’re in opposition to the death penalty, which to me, that is the law; the death penalty is the law. A person who is not willing to impose the death penalty is basically not willing to follow the law. And I don’t have time to get into all the other circumstances of which they may have a moral quandary as far as following the law, and so out of an abundance of caution, I’m excusing them both.”
The trial court accepted this explanation regarding prospective juror Ms. L.
In his brief to us, appellant challenges this ruling on the ground that, as noted above, there was a third juror, an Asian-American, who also had indicated his opposition to the death penalty, but was not excused by the prosecution. The in-chambers interchange between the court and counsel on this subject was as follows:
“MR. ENDRIES: And I know with Juror No. 12, I’ve got a problem. He’s against the death penalty, too, but he’s Asian, so what am I going to do?
“THE COURT: What do you mean by that?
“MR. ENDRIES: I’m not going to excuse him. I cannot. I’ll get a Wheeler.
“THE COURT: I don’t think so. He could be fair. He wasn’t sure he could be fair. You’re all right.”
We conclude that the prosecution’s explanation for its challenges to prospective jurors Ms. L. and Ms. M. for their statements regarding their view of the death penalty––and, implicitly per the prosecutor, possible other criminal law standards––is not undermined by its failure to challenge the ultimately-seated Asian-American juror No. 12. As the People point out in their brief to us––and appellant nowhere addresses in its brief––the prosecution could have readily concluded that juror No. 12 might have a “pro-prosecution stance.” This is so because, as revealed during the course of his voir dire, juror No. 12 and his wife had recently been the victims of an attempted burglary. The incident had happened “just a few months ago” when juror No. 12’s wife had seen a burglar in their garage while he was napping. In response to her scream, he came out of the house, tracked the burglar to a neighbor’s house, and called the police. The man was ultimately arrested and convicted.
After juror No. 12 had related this incident, the trial court asked him if it was “going to have any affect [sic] on your ability to be fair in this case.” Juror 12 answered: “It may” and then, in response to a further question from the court, explained that “[t]his is a very similar case” and “I still––I have the feelings that we are the victims of a burglary.” He concluded his remarks by saying: “So I’m hoping that doesn’t happen that I hold it against anyone. . . . [¶] But I’m not quite sure. I can say almost maybe 80 percent, 90 percent for sure. But still I’m not 100 percent. That’s why I say ‘may.’”
Notwithstanding this, the defense did not challenge juror No. 12. And, under the circumstances, we certainly understand why the prosecution did not, either––and notwithstanding juror No. 12’s later statement that he had some discomfort about the death penalty. In view of juror No. 12’s answers on voir dire, there was clearly no prosecution inconsistency concerning jurors who expressed doubts about the death penalty, and thus no error in denying appellant’s Batson-Wheeler motion regarding prospective jurors Ms. L. and Ms. M.
In summary, we find no Wheeler-Batson error because: (1) the prosecution did not challenge two prospective African-American jurors; (2) the trial court found no prima facie case had been made as to prospective jurors Mr. C. and Ms. M; (3) it specifically noted that Mr. C. could well have had a communication problem if he had been permitted to participate as a juror; (4) the prosecutor’s stated reason for challenging Ms. P.-B. was not rebutted by appellant’s trial counsel nor by appellant in his brief to us; (5) the prosecutor’s challenges to prospective jurors Ms. L. and Ms. M. were both non-discriminatory because based on their answers concerning their views regarding the death penalty.
See, holding that the prosecution’s lack of a challenge to prospective jurors of the same race as others that it did challenge is a factor rebutting an inference of racial prejudice: People v. Stanley (2006) 39 Cal.4th 913, 938, fn. 7; People v. Cornwell (2005) 37 Cal.4th 50, 69-70; People v. Arias (1996) 13 Cal.4th 92, 136, fn. 15; People v. Crittenden (1994) 9 Cal.4th 83, 119; People v. Turner (1994) 8 Cal.4th 137, 164-165, disapproved on other grounds in People v. Griffin, supra, 33 Cal.4th at p. 555, fn. 5; and People v. Trevino (1997) 55 Cal.App.4th 396, 404.
IV. DISPOSITION
The judgment is affirmed.
We concur: Kline, P.J., Lambden, J.