Opinion
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. No. 5-060436-3
Lambden, J.
Defendant appeals from his conviction after jury trial for vehicular manslaughter with gross negligence on the grounds that the court erred when it barred a prospective juror from the jury because of a prior conviction; the prosecutor improperly challenged jurors based on racial bias; the court erred by admitting prejudicial, irrelevant evidence of past bad acts; and the prosecutor engaged in prosecutorial misconduct during closing argument to the jury. We reject each of these arguments and affirm the judgment.
BACKGROUND
On the evening of December 7, 2004, defendant was driving his Firebird with a passenger, Justin Pierson, on Highway 4 in Contra Costa County when it crashed into a tree. The parties stipulated that Pierson died as a result of blunt force trauma to the head that he suffered in the crash.
The Contra Costa County District Attorney filed an information charging defendant with one count of vehicular manslaughter with gross negligence and unlawful act (Pen. Code, § 192, subd. (c)(1), Veh. Code, § 22350). A jury trial followed, beginning in May 2007.
The Prosecution’s Case
Nicole Minton
Nicole Minton testified that about 8:00 p.m. on the evening of December 7, 2004, she was driving 55 to 60 miles per hour in the fast lane on Highway 4 with her brother Daniel. The traffic was medium to light. The road was wet, but it was not raining. A Firebird automobile came up behind her “really fast” and was weaving in and out of traffic. She thought it was going about 90 miles per hour, faster than everyone else. The Firebird came within 7 to 10 feet of her, passed her on the right in the slow lane, went into the fast lane, and changed lanes three or four times. After passing her car, the Firebird “slowed a bit, but not by much.” When the Firebird was in the fast lane about five to six car lengths ahead of her, Minton saw it spin, go off the road, and hit a tree. Minton stopped her car and walked back to the Firebird, where she saw the driver, whom she identified as defendant, passed out in the driver’s seat. Another man was in the passenger seat with blood coming out of his mouth, trying to breathe.
Daniel Minton
Daniel Minton testified that he saw a car coming in the rear view mirror of his sister’s car that was going in and out of lanes and “wasn’t driving like other regular cars.” It passed by and continued to veer in and out of lanes two or three times, and two cars ahead used their brake lights as the speeding car cut in front of their cars. He acknowledged that he had previously testified that he was not sure if he saw the other cars use their brake lights, but indicated that he remembered this later. He then saw the car lose control, fishtail, and go off to the right, where it struck a tree. The car was going about 10 miles an hour faster than his sister’s. It was not going a lot faster than other cars, but was going fast enough to pass everyone “in that short period of time.”
Omar Morquecho
Omar Morquecho was also driving down Highway 4 at the time of the crash, going about 65 miles per hour in the slow lane. He thought the traffic in the fast lane was going about 70 to 75 miles per hour. He heard a car get close to his and he veered to his right. A Firebird “blew by” and cut in front of him going about 90 miles per hour, then accelerated to about 95 miles per hour and went back into the fast lane. Morquecho did not remember telling the police that it was going 85 miles per hour, as was indicated in a police summary showed to him at trial. The car went into the slow lane, then made another lane change “extremely fast,” and then appeared to Morquecho, when it was about 8 to 10 car lengths ahead of him, to go out of control, hit a wall, fishtail, cross the freeway, and hit a tree.
Morquecho stated that the Firebird was going significantly faster than the other cars on the freeway. The other cars that passed his were not going close to the speed of the Firebird. He was afraid for his own safety and the safety of the other drivers.
Officer Joseph Godman
Officer Joseph Godman of the California Highway Patrol (CHP) testified that he arrived at the scene of the crash to find fire department personnel trying to extricate a passenger from a Firebird that had crashed. The road at the point of the crash had two lanes, each one 12 feet wide, and there was a wall topped by a chain-link fence separating the east and west lanes. The posted speed limit was 65 miles per hour. Since he did not see any marks on the freeway divider or damage to the driver’s side of the Firebird, he concluded that the Firebird had not collided with the freeway’s center barrier, but had gone off the road because it was going too fast for the roadway conditions and lane change maneuvers.
Godman testified that he could not determine the Firebird’s path before it reached a “gore point” in the grass because there were no skid marks. He found tire tracks beginning at the gravel at the end of the highway to the point of impact in the grass, covering a distance of 85 feet. He made a sketch that showed where the tracks began, but not where the Firebird might have first lost control.
Godman further testified that defendant’s blood test was negative for alcohol and drugs. Morquecho and Daniel Minton told him that the Firebird was going between 80 and 85 miles per hour, but Morquecho was unsure and Minton could not tell him how he estimated the speed. Morquecho did not tell him that he had to veer to avoid being struck by the Firebird. Daniel Minton did not tell him that he saw other vehicles putting on their brakes. None of the witnesses said the Firebird was going 90 to 95 miles per hour.
Kerry Grimes
CHP Officer Kerry Grimes testified as an expert on automobile mechanics and mechanical inspection. His examination of defendant’s Firebird at a tow yard indicated that while the Firebird had a standard engine, it was the highest performance standard engine, and could exceed 140 miles per hour. As for the Firebird’s condition, Grimes testified that various parts were in fairly good or better working order, and concluded that nothing was wrong with the vehicle except for the damage from the accident.
Toby Gloekler
Toby Gloekler, an accident reconstruction expert, noted that Godwin’s sketch of the path of the Firebird depicted the vehicle’s path only after it left the roadway to the point of impact with the tree. He concluded that the Firebird traveled 195 feet between the points when control was lost and the car reached the embankment, and another 79 or 80 feet until the point of impact. He did not independently examine the car wreck, but instead relied on the defense expert’s analysis of the crush damage to the Firebird, and that expert’s calculation of the speed on impact. Gloekler’s calculations were based in part on a Google Earth photograph of the scene that he put into CADD software. He disagreed with the defense expert’s belief that the Firebird traveled 61 feet from loss of control to its resting point.
Other Evidence
Over defense objections, the court allowed the People to also introduce evidence of two previous driving incidents involving defendant. First, CHP Officer Jerrod Speasl testified that in October 2001, he cited defendant for driving 131 miles per hour in a 55 miles per hour speed zone about 1:00 a.m. on a four-lane surface street between Dublin and Livermore, California. Speasl did not cite defendant for reckless driving because there were no other cars on the street, no side streets from which a car could enter, and because defendant pulled over when Speasl attempted to stop him.
Second, retired CHP Officer Dave Person testified that on December 26, 1997, he was patrolling on Highway 88 near Stockton about 6:50 p.m. when he responded to a report of an accident. There were no unusual road conditions. Defendant had driven off the road in his pickup truck, which had struck a power pole and crashed, killing defendant’s passenger. Person interviewed defendant, who said he had been going about 50 to 55 miles per hour and had fallen asleep at the wheel. After interviewing other witnesses to the crash, Person concluded that defendant had been going about 50-55 miles per hour on a dry road and had not been speeding or passing other cars. Person did not smell alcohol on defendant’s breath or observe any signs that he was intoxicated, nor did he see any open containers in the truck. Person did not arrest defendant or issue him a citation. He sent a report to the district attorney’s office recommending prosecution on a simple vehicular manslaughter charge. He did not hear anything further about the matter.
Defense Case
The defense presented Michael Mahoney, an accident reconstruction expert, who testified that he calculated that the Firebird was travelling at a speed of 71.266 miles per hour, plus or minus 4.5 miles per hour, before it began to skid. Mahoney also examined the car wreck in the storage yard and measured the amount of crush damage caused when the car hit the tree. Based on the extent of the crush and information concerning the structural strength of the car model, Mahoney calculated that the Firebird was traveling at 31.76 miles per hour when it hit the tree. Mahoney used Godwin’s sketch to trace the Firebird’s path from the point at which it lost control. He concluded that the car skidded approximately 61 feet on the paved road, decelerated 27 to 34 miles per hour while traveling on the pavement, and traveled a total distance of about 140 feet before it hit the tree.
The Verdict
The jury found defendant guilty as charged of one count of vehicular manslaughter with gross negligence and unlawful act. The court imposed a midterm sentence of four years.
Defendant filed a timely notice of appeal.
DISCUSSION
I. Excusal of Juror Clark
Defendant argues that the trial court committed prejudicial error when it excused prospective Juror Clark during voir dire for cause over defendant’s objection because Clark had been previously convicted of a felony. We disagree.
A. The Relevant Proceedings
Clark acknowledged upon questioning that he had previously been convicted of felony embezzlement, but said that the conviction had been reduced to a misdemeanor pursuant to Penal Code section 17, subdivision (b), and was dismissed after he completed probation. The prosecutor moved to excuse him as ineligible to serve because of his felony conviction, and defense counsel objected, arguing that Clark was eligible because his conviction was no longer a felony. The court, citing United States v. Horodner (9th Cir. 1996) 91 F.3d 1317, ruled that Clark was ineligible to serve pursuant to Code of Civil Procedure section 203, subdivision (a)(5), which provides that persons who have been convicted of a felony, and whose civil rights have not been restored, are ineligible to serve on a jury.
B. Discussion
Defendant argues that the trial court improperly relied on United States v. Horodner, supra, 91 F.3d 1317, which is “irrelevant” because Clark did not have a felony conviction. Defendant, relying largely on Gebremicael v. California Com. on Teacher Credentialing (2004) 118 Cal.App.4th 1477, and People v. Camarillo (2000) 84 Cal.App.4th 1386, argues that a felony conviction that is reduced to a misdemeanor pursuant to Penal Code section 17, subdivision (b), renders the conviction a “misdemeanor” “ ‘for all purposes,’ ” and that courts “may not create exceptions to that rule without further legislative guidance.” (People v. Camarillo, supra, at pp. 1391, 1394.)
Defendant further argues that, pursuant to a capital case, People v. Heard (2003) 31 Cal.4th 946, the improper exclusion of a prospective juror for cause over timely defense objection is reversible error, regardless of whether the prosecution had unused peremptory challenges that could have been used to exclude the juror. Defendant also argues that People v. Hernandez (2003) 30 Cal.4th 1, and People v. Burgess (1988) 206 Cal.App.3d 762, are relevant, and involved reversals “without any inquiry into prejudice,” and also cites People v. Cleveland (2001) 25 Cal.4th 466, 469, People v. Hohensee (1967) 251 Cal.App.2d 193, and People v. Burns (1948) 84 Cal.App.2d 18.
Defendant also argues that the trial court’s error unfairly “stigmatizes” a juror as a felon and encourages prosecutors to effectively obtain extra peremptory challenges “by bringing unfounded challenges for cause against jurors they suspect might be sympathetic to the defense.”
The People agree that “once a court reduces a felony conviction to a misdemeanor pursuant to Penal Code section 17, subdivision (b), the offense is a misdemeanor for all purposes, and therefore not a disqualification for jury service.” However, they disagree with defendant that the court’s error is reversible without a showing of prejudice. The People argue that generally, error based on the excusal of a prospective juror requires a showing of prejudice, relying on People v. Kelly (2007) 42 Cal.4th 763. The Supreme Court in Kelly, in discussing the trial court’s excusal of two prospective jurors, stated that “[g]enerally, error in excusing jurors for reasons not related to their views regarding the death penalty does not require setting aside the judgment. [Citations.] ‘Defendant has a right to jurors who are qualified and competent, not to any particular juror.’ ” (Id. at p. 777.) The People point out that none of the cases relied upon by defendant to argue reversible error involve the challenge of a prospective juror in the present circumstances. They correctly note that People v. Heard, supra, 31 Cal.4th 946, was a death penalty case, in which our Supreme Court held that a prospective juror had been improperly excused for expressing certain views related to a possible death sentence, although his statements did not indicate his views would prevent or substantially impair his performance of his duties as a juror (id. at pp. 959-963), and that People v. Cleveland, supra, 25 Cal.4th at page 469 (dismissal of juror already in deliberations), People v. Hohensee, supra, 251 Cal.App.2d at pages 203-204 (same), and People v. Burns, supra, 84 Cal.App.2d 18 (involving whether or not double jeopardy applied when an alternate replaced an already selected juror who was excused before selection of the alternate), involved inapposite situations. Likewise, People v. Hernandez, supra, 30 Cal.4th 1, and People v. Burgess, supra, 206 Cal.App.3d 762, involved excusals of sitting jurors, in Hernandez near the end of trial(People v. Hernandez, supra, at pp. 3, 7-8 [explaining Burgess]), and in Burgess involving a finding that harmless error analysis applied to the excusal in any event. (People v. Burgess, supra, at p. 769.)
We agree with the People that the general rule regarding excusal of prospective jurors applies here, and that defendant’s failure to establish prejudice is fatal to his appellate claim. Defendant provides us with no valid reason to depart from this rule in the face of a trial court’s error of law regarding the significance of a prospective juror’s criminal history to his right to serve on a jury.
Defendant, in his reply brief, after acknowledging that the court “erroneously thought” that his prior conviction was a felony conviction, also argues that Clark’s excusal was “because of [Clark’s] membership in a ‘cognizable class’—persons who were convicted of ‘wobbler’ offenses later reduced to misdemeanors for all purposes.” We reject this argument for two reasons. First, it is tardy. “It is elementary that points raised for the first time in a reply brief are not considered by the court.” (Levin v. Ligon (2006) 140 Cal.App.4th 1456, 1486.) Defendant should have presented this argument in his opening brief because it is a basis for reversal per se, which he argued in his opening brief was necessary here. Second, the record makes clear that the court did not exclude the prospective juror for any discriminatory purpose, but because of the court’s misunderstanding of the law.
In short, we hold that, to the extent the court erred in excluding Clark, defendant had the burden of establishing it was prejudicial. Having failed to do so, we reject his claim that we must reverse because of Clark’s excusal.
We do not hold that the court actually erred because the parties debate remedy only, not error. Accordingly, we assume the error and resolve the remedy issues.
II. The Excusal of Jurors Lacy, Kirkwood, Smith, Castillo, and Garcia
Defendant argues that, contrary to the court’s rulings, the prosecutor challenged three Black and two Hispanic perspective jurors for discriminatory reasons, thereby violating the federal and state Constitutions.
A. Legal Standards
California and federal constitutions prohibit the use of peremptory challenges to remove prospective jurors based solely on group bias. (Batson v. Kentucky (1986) 476 U.S. 79, 96; People v. Wheeler (1979) 22 Cal.3d 258, 276-277.)
“The purpose of peremptory challenges is to allow a party to exclude prospective jurors who the party believes may be consciously or unconsciously biased against him or her.” (People v. Jackson (1992) 10 Cal.App.4th 13, 17-18.) Peremptory challenges may properly be used to remove jurors believed to entertain specific bias, i.e., bias regarding the particular case on trial or the parties or witnesses thereto. (Wheeler, supra, 22 Cal.3d at p. 274.) However, “ ‘[a] prosecutor’s use of peremptory challenges to strike prospective jurors on the basis of group bias—that is, bias against “members of an identifiable group distinguished on racial, religious, ethnic, or similar grounds”—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.’ ” (People v. Bell (2007) 40 Cal.4th 582, 596; see Batson, supra, 476 U.S. at pp. 88-89; Wheeler, supra, 22 Cal.3d at pp. 276-277.)
The standards a trial court applies when a defendant makes a Batson/Wheeler challenge to the prosecutor’s peremptory strike are as follows: “ ‘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.” ’ ” (People v. Avila (2006) 38 Cal.4th 491, 541, quoting Johnson v. California (2005) 545 U.S. 162, 168.)
At step three of the Batson/Wheeler analysis, the trial court must decide whether the opponent of the peremptory strike has proved purposeful racial discrimination by a preponderance of the evidence. (Purkett v. Elem (1995) 514 U.S. 765, 767; People v. Hutchins (2007) 147 Cal.App.4th 992, 997-998.) At this point, the persuasiveness of the proffered justification becomes relevant (Johnson v. California, supra, 545 U.S. at p. 171), and an implausible or fantastic justification will often be found to be pretext for purposeful discrimination. (Purkett v. Elem, at p. 768.) “In [this] process, the trial court must determine not only that a valid reason existed but also that the reason actually prompted the prosecutor’s exercise of the particular peremptory challenge.” (People v. Fuentes (1991) 54 Cal.3d 707, 720.)
However, a prosecutor is presumed to use his or her peremptory challenges in a constitutional manner (People v. Alvarez (1996) 14 Cal.4th 155, 193; Wheeler, supra, 22 Cal.3d at p. 278), and the justification proffered for the particular excusal “need not support a challenge for cause, and even a ‘trivial’ reason, if genuine and neutral, will suffice.” (People v. Arias (1996) 13 Cal.4th 92, 136.) The trial court must then satisfy itself that the explanation is genuine. (People v. Hall (1983) 35 Cal.3d 161, 168.) “What is required are reasonably specific and neutral explanations that are related to the particular case being tried.” (People v. Johnson (1989) 47 Cal.3d 1194, 1218.) “When a trial court has made a sincere and reasoned effort to evaluate each of the stated reasons for a challenge to a particular juror, we accord great deference to its ruling, reviewing it under the substantial evidence standard. [Citations.]” (People v. Jurado (2006) 38 Cal.4th 72, 104-105.) Deference does not, of course, “imply abandonment or abdication of judicial review.” (Miller-El v. Cockrell (2003) 537 U.S. 322, 340.) “[R]ace-neutral reasons for peremptory challenges often invoke a juror’s demeanor (e.g., nervousness, inattention), making the trial court’s first-hand observations of even greater importance.” (Snyder v. Louisiana (2008) ___ U.S. ___ [128 S.Ct. 1203, 1208, 1210-1212] [reversed and held that prosecutor’s proffered reasons for striking an African-American prospective juror were “unconvincing,” “highly speculative,” “suspicious,” “implausib[le],” and “pretextual”].)
Nonetheless, “ ‘ “ [a]ll that matters is that the prosecutor’s reason for exercising the peremptory challenge is sincere and legitimate, legitimate in the sense of being nondiscriminatory.” [Citation.] A reason that makes no sense is nonetheless “sincere and legitimate” as long as it does not deny equal protection.’ ” (People v. Stanley (2006) 39 Cal.4th 913, 936.) Furthermore, “the question is not whether we as a reviewing court find the challenged prospective jurors similarly situated, or not, to those who were accepted, but whether the record shows that the party making the peremptory challenges honestly believed them not to be similarly situated in legitimate respects.” (People v. Huggins (2006) 38 Cal.4th 175, 233.) The burden is on the one opposing the challenge to show that the prosecutor exercised challenges on a basis that was unconstitutional. (Johnson v. California, supra, 545 U.S. at pp. 168-171; Yee v. Duncan (9th Cir. 2006) 463 F.3d 893, 898.)
B. Prospective Juror Lacy
Prospective Juror Lacy stated that she had been cited for speeding, but that she had deserved the tickets. Later, the prosecutor peremptorily excused her. Defense counsel made a Batson/Wheeler motion, arguing that Lacy was the only Black juror, worked at Kaiser, gave neutral answers to all of the questions on the questionnaire, and that, even though she mentioned that she had a speeding ticket, she said that she deserved it.
Defendant appears to be Caucasian. As he correctly notes on appeal, this does not eliminate his right to make a Batson/Wheeler motion. (See Powers v. Ohio (1991) 499 U.S. 400, 410-415.)
The court did not find a prima facie case of discrimination, but allowed the prosecutor to put his reasons for his challenge on the record. The prosecutor’s first reason was that Lacy was single and without children, as he believed that “when you have children you turn into a different driver.” He also wanted jurors who had children because he thought driving with children in the car elevates awareness about the risks of the road, and sought older people on the panel who had enough experience driving to know what is dangerous.
The defense offered nothing in response. The court then stated, for the purposes of appellate review, that it believed “the reasons given are not race based and are sincere in the sense that they are not made up as a sham or a façade for race based exclusion of jurors.”
Defendant contends that the prosecutor challenged Lacy for discriminatory reasons because four other seated jurors did not have children, and one of the seated jurors was a young preschool teacher, who had only been employed for five years. The People correctly point out in their reply brief that such a comparative analysis only applies if the court reaches the third step of the Batson/Wheeler analysis, and only if it finds a prima facie case of group bias. (People v. Howard (2008) 42 Cal.4th 1000, 1019-1020.) As was stated in People v. Howard, since this is not a “ ‘third stage case,’ in which a trial court concludes a prima facie case has been made, solicits an explanation of the peremptory challenges from the prosecutor, and only then determines whether defendant has carried his burden of demonstrating group bias... we are not compelled to conduct a comparative analysis here. Whatever use comparative juror analysis might have in a third-stage case for determining whether a prosecutor’s proffered justifications for his strikes are pretextual, it has little or no use where the analysis does not hinge on the prosecution’s actual proffered rationales, and we thus decline to engage in a comparative analysis here.’ [Citation.] [¶] We have encouraged trial courts to ask prosecutors to give explanations for contested peremptory challenges, even in the absence of a prima facie showing. [Citation.] We emphasize that if a court ultimately concludes that a prima facie showing has not been made, the request for and provision of explanations does not convert a first-stage Wheeler/Batson case into a third-stage case.” (Ibid.)
Defendant asserts that the trial court later “revised its ruling that the defense had not made a prima facie case of discrimination as to the prosecutor’s excusing of Ms. Lacy,” and cites to a particular page number in the reporter’s transcript. We have examined that page, and see no indication that the court changed its initial ruling.
Thus, we are left with the court’s determination that defendant did not establish a prima facie case of discrimination. Putting aside defendant’s comparative analysis, he provides little, if any, reason why we should find fault in the court’s determination, and we find no reason to do so. In any event, his comparative analysis is unpersuasive in light of both Lacy’s youth and lack of children, circumstances which defendant does not establish were the same as any seated juror’s. Accordingly, we reject his claim regarding prospective Juror Lacy.
C. Prospective Juror Kirkwood
The prosecutor challenged prospective Juror Kirkwood, who also was Black. During voir dire, the prosecutor told Kirkwood that he had been looking at him, that they had made eye contact a couple of times, and that one time the prosecutor thought that Kirkwood was angry at him. Kirkwood denied it. Later, Kirkwood stated that he had previously been on a hung jury, had been in the minority and, when asked how he felt about the experience of being in the minority, said, “I didn’t have no experience at all, I figured I gave the guy a fair chance to get convicted because I do not think he was accused of a correct crime.”
A short time later, the prosecutor told the court that he intended to challenge Kirkwood because Kirkwood had been hostile to him. Defense counsel responded that there were only two Black prospective jurors on the panel of 60, and that the prosecutor had challenged both of them. The court stated that an inference of discrimination “could be made,” and requested an explanation. The prosecutor gave two reasons for his challenge. First, Kirkwood “was in the minority of a hung jury, which leads me to believe that Mr. Kirkwood was a non-guilty vote,” which the prosecutor believed was confirmed by Kirkwood’s statement about giving the “guy” a “fair chance” and that he did not think the correct crime had been charged. The prosecutor thought this raised “big warning flags” because he anticipated that the defense would argue that this was a misdemeanor offense, and not gross negligence, and that if Kirkwood had been part of a minority not-guilty vote on a hung jury, it meant that he was not “willing to kind of get on the team and work with the other jurors to come to a conclusion in a jury trial, which is a huge red flag in and of itself.” The prosecutor also considered it a “huge, red flag” that Kirkwood believed the wrong crime had been charged. He further stated that he had made eye contact with Kirkwood several times and Kirkwood had repeatedly looked at him in a way that was “less than friendly.”
Defense counsel argued that any juror is entitled to his own opinions, and that exercising a challenge based on eye contact involved “gross speculation” that would allow any prosecutor to challenge anyone just because they looked at the prosecutor “funny.”
The court then denied the motion. It found that, while a juror is to vote their conscience after discussion with other jurors, and should not be criticized for doing so, “it is a reasonable basis for a prosecutor to be concerned about a given juror, and it is a race-neutral reason.” The court also stated that, while it did not observe any animosity from the juror toward the prosecutor, it found the prosecutor’s explanation to be honest. Accordingly, the court found the challenge would be exercised for a race-neutral reason that was not a façade or sham. The prosecutor challenged Kirkwood after this ruling.
Defendant contends on appeal that the prosecutor’s reasons for excusing Kirkwood were not credible because Kirkwood’s statement about his service on the previous jury did not necessarily mean that he voted for acquittal, and that the prosecutor failed to question Kirkwood further to resolve the ambiguity. We do not see the merit in this argument. It is apparent from Kirkwood’s stated belief that the previous defendant had not been properly charged that, Kirkwood was not in favor of a guilty verdict in that trial. Moreover, his questioning of the charge, which was one ground cited by the prosecutor for challenging Kirkwood, was by itself a sufficient race-neutral reason for the prosecutor to challenge him under the circumstances. Therefore, we have no reason to disturb the trial court’s ruling.
In light of our conclusion, we need not address the questions raised by defendant regarding whether or not the court should have relied on the prosecutor’s references to Kirkwood’s apparent animosity towards him. (People v. Pride (1992) 3 Cal.4th 195, 230 [“[b]ecause the trial court found at least one legitimate race-neutral explanation for each questioned peremptory challenge, no abuse of discretion occurred.”].)
D. Prospective Juror Smith
Smith, another Black prospective juror, stated that she worked in the same school as the victim’s mother, but that this would not affect her vote, and that she could give defendant a fair trial. She also stated that she had received speeding tickets, but thought that she had deserved them. She said that she had graduated from UC Davis, and had been pulled over by police 14 times and been issued five tickets. She thought she had been unfairly targeted because she had been profiled as coming from a high crime area, which left a “bad taste” in her mouth for the police. She also stated that her best friend had been killed in a car accident on Highway 4 about 13 years before.
Smith was not selected for the initial jury. During the selection of an alternate juror, the prosecutor challenged Smith. The court then selected another person as an alternate juror, and swore in the jury. At that point, defendant made a Batson/Wheeler motion regarding Smith, arguing that all the Black potential jurors on the panel had been excused.
The court stated that it found a prima facie case of discrimination. The prosecutor then provided several reasons for his challenge. First, he argued that it was “very weird” and “terrifying” that Smith had said it would not disturb her to see photographs of the victim despite the fact that she works with the victim’s mother and saw the mother every day. Second, the prosecutor thought Smith had indicated that she had a bad taste for police because she thought she was being racially profiled, and that “I’d be a fool of a prosecutor to leave somebody on who felt she was being racially profiled in Davis.” Third, the prosecutor had problems with “characteristics” about Smith, including her “attitude” and “personality.”
Defense counsel’s response related mostly to the prosecutor’s comments about Smith’s personality and character. The court noted that in chambers it had denied a challenge by the prosecutor for cause based on Smith’s relationship with the victim’s mother. It then stated that the reasons given by the prosecutor for the peremptory challenge were race-neutral, genuine reasons, not subterfuge to hide a race-based reason, and denied the motion.
On appeal, defendant argues that Smith’s troubles with police were limited to her issues with local police officers in Davis, rather than with CHP officers. The record does not reflect that Smith was stopped only by local Davis police officers. Furthermore, her reference to a “bad taste” about police was not limited to Davis police officers. Therefore, it was reasonable for the prosecutor to be concerned that Smith might not fairly evaluate the testimony of the CHP officers at trial, which testimony was an important part of the prosecution’s case. We find this reason sufficient to affirm the court’s ruling regarding the prosecution’s challenge of Smith.
Again, we need not address the other reasons stated by the prosecutor in light of our conclusion. (People v. Pride, supra, 3 Cal.4th at p. 230.)
E. Prospective Juror Castillo
The prosecutor also excused two Hispanic prospective jurors, the first one being Mr. Castillo, a CADD manager, CADD being identified by the prosecutor as an acronym for an engineering program. After the prosecutor challenged him, defense counsel made a Batson/Wheeler motion, arguing that Castillo was “an older gentleman,” had children, and that there was not a race-neutral explanation for the excusal.
The court at first did not find a prima facie case of race discrimination, but gave the prosecutor the opportunity to put his reasons for the challenge on the record. After the prosecutor challenged a second Hispanic prospective juror, Garcia, the court found an inference.
The prosecutor stated that he rated Castillo a “poor juror from the get-go” as a result of his occupation as a CADD manager, because the prosecution’s expert used the same program, and the prosecutor did not want “somebody second-guessing, looking over my expert’s shoulder.” The prosecutor also stated that he did not put architects or engineers on the jury because of his concern that they would over-analyze the technical testimony, was concerned that Castillo drove a Z28, which was like defendant’s Firebird, and that he was concerned that, when asked if he had received any speeding tickets, Castillo had answered, “ ‘Well, no, I’ve just never gotten caught.’ ”
Defendant argues that the prosecutor’s justifications were “amusing.” Defendant points out that the prosecutor kept two engineers on the jury, a senior development engineer, and a chemical engineer. He also argues that Castillo was older and with children, the type of juror the prosecutor had earlier said he wanted on the jury.
Defendant’s comparative analysis is relevant in light of the court’s finding of a prima facie case of discrimination (People v. Howard, supra, 42 Cal.4th at pp. 1019-1020), but it is nonetheless unpersuasive. Defendant does not establish that there was reason to believe that the other engineers on the jury were as familiar with CADD as Castillo, a CADD manager. He also fails to deal effectively with the impact of Castillo’s revelation that he drives a car similar to a Firebird, and has “never gotten caught” speeding, simply arguing that there was no “evidence” that Castillo actually had sped, and that these were not bases for a “credible” race-neutral reason to challenge Castillo. We disagree. In this particular case, Castillo’s familiarity with CADD and his statement, which indicated that he had sped in the past, were valid race-neutral reasons for the prosecutor to exercise a challenge. Therefore, we reject defendant’s argument.
F. Prospective Juror Garcia
Defendant also argues that the prosecutor challenged prospective juror Garcia for discriminatory reasons. We disagree.
When the prosecutor challenged Garcia, the court, upon the defense’s Batson/Wheeler objection, found an inference of discrimination, namely that the prosecutor was excluding Hispanics from the jury. The prosecutor stated that he had challenged Garcia because of Garcia’s statement that he received a speeding ticket about every 18 months and had gotten caught in a speed trap. To the prosecutor, this indicated that Garcia had been stopped by the police, did not learn from his error, and sped again. He analogized this pattern to that of defendant, who had had previous incidents driving in 1997 and 2001, as we have discussed. The prosecutor also said that he did not intend to challenge two other Hispanic prospective jurors.
Defense counsel responded that Garcia’s remark about speeding was a joke and that everyone had laughed, including the prosecutor and the court. The court stated that the challenge to Garcia (as well as Castillo) was race-neutral, indicating that while Garcia had been joking about the speeding tickets his comments had indicated that he had received frequent speeding tickets.
On appeal, defendant argues that there was no “evidence” that Garcia “actually got speeding tickets with any kind of frequency at all.” He contends that the prosecutor should have obtained Garcia’s actual driving record and submitted it. We do not agree in light of Garcia’s reference, joking or not, to receiving speeding tickets with some frequency in the past. It is for the trial court, and not this court, to evaluate the credibility of such a statement by a prospective juror. Defendant does not provide us with any persuasive reason to second-guess the trial court’s determination that the statement contained a significant element of truth. The trial court made a sincere and reasoned effort to evaluate the prosecutor’s reason for challenging Garcia, and Garcia’s statement about speeding tickets constitutes substantial evidence to support the court’s ruling. Pursuant to the standard of review discussed in People v. Jurado, supra, 38 Cal.4th at pages 104-105, we find no reason to disturb its ruling.
III. Evidence of the Two Prior Incidents
Defendant also challenges the trial court’s rulings that the People could introduce the evidence of the 1997 incident, when defendant fell asleep at the wheel and drove into a ditch, resulting in the death of a passenger, and his 2001 citation for speeding at 131 miles per hour in a 55 miles per hour speed zone. Defendant argues that under the circumstances of the case, evidence regarding these prior acts should not have been admitted pursuant to the standard articulated in People v. Ochoa (1993) 6 Cal.4th 1199 (Ochoa). We find no error by the trial court under the applicable standard of review.
A. Proceedings Below
Before trial, the prosecutor sought to admit evidence of the 1997 crash, a 2003 death of a man with whom defendant had fought, for which defendant was convicted of involuntary manslaughter, and speeding citations in 2001 and in 2002. Defendant moved to exclude the evidence of these prior bad acts pursuant to Evidence Code sections 1101 and 352, arguing that this evidence was not relevant to prove intent to commit the present alleged crimes, was irrelevant given the dissimilarity with the current allegations, and was more prejudicial than probative.
The court, after hearing argument, granted defendant’s motion to exclude the 2003 involuntary manslaughter conviction (as not relevant to intent) and the 2002 speeding ticket (for lack of details). These rulings are not at issue in this appeal.
The court denied defendant’s motion to exclude the 1997 crash and the 2001 speeding citation, citing the People’s analyses of two cases, Ochoa, supra, 6 Cal.4th 1199, and People v. Ortiz (2003) 109 Cal.App.4th 104 (Ortiz). The court determined that these cases established that the standard for proving gross negligence is an objective standard, but also is based on defendant’s position and life experiences, which inform him about the risks involved in his conduct. The court found that defendant’s prior experience “of reckless or negligent or even... generically dangerous driving whether a crime or not is directly relevant to his knowledge of the dangers of driving under various conditions, and including speeding, including while you’re sleepy, including a variety of risks that we all face when driving. It is that constellation of risks that defendant was aware of, and the standard to be applied is whether a person would drive in the way the defendant allegedly drove on this occasion with the knowledge and life experiences he had.”
The court also rejected the argument that this evidence was being admitted as character evidence. It characterized defendant falling asleep at the wheel as “at the very least as negligent conduct,” and stated that defendant’s being cited for speeding 131 miles per hour in a 55 mile-per-hour zone, with the commensurate fine, was “precisely designed to communicate to the offender that the conduct is dangerous, and that driving at that rate is more dangerous and, therefore, the fine is higher.” It found that these two prior acts were admissible to prove defendant’s intent and knowledge, and that their probative value outweighed any prejudice.
After the prosecution introduced evidence of the 1997 and 2001 bad acts, the court instructed the jury that such evidence was admissible only to show identity, intent, or common plan. The court also instructed the jury regarding “gross negligence” that “a person acts with gross negligence when the way he or she acts is so different from how an ordinary careful person in the defendant’s position would act in the same situation that his or her act amounts to disregard for human life or indifference to the consequences of that act.”
B. Discussion
We review the court’s ruling pursuant to an abuse of discretion standard. (Ortiz, supra, 109 Cal.App.4th at p. 117.) Defendant argues, as he did to the trial court, that the facts and holding of Ochoa, supra, 6 Cal.4th 1199, should be construed narrowly, and attempts to distinguish the facts of the present case from those in Ochoa. The argument is unpersuasive in light of our abuse of discretion standard of review.
In Ochoa, supra, 6 Cal.4th 1199, the California Supreme Court reviewed defendant Ochoa’s conviction of two counts of gross vehicular manslaughter while intoxicated. The court held that the trial court did not abuse its discretion in admitting evidence that the defendant had previously been convicted of driving under the influence and had attended an alcohol awareness class. (Id. at pp. 1205-1206.) The court specifically rejected the argument that the evidence was inadmissible because the standard for gross negligence was an objective one:
“In determining whether a reasonable person in defendant’s position would have been aware of the risks, the jury should be given relevant facts as to what defendant knew, including his actual awareness of those risks.... [F]or if the evidence showed that the defendant actually appreciated the risks involved in a given enterprise, and nonetheless proceeded with it, a finding of gross negligence (as opposed to simple negligence) would be appropriate whether or not a reasonable person in defendant’s position would have recognized the risk.” (Id. at p. 1205.)
The court noted that in making a determination of what a reasonable person in Ochoa’s position would have done, the jury should have been able to consider all the relevant circumstances, and stated that “the evidence at issue here was relevant to defendant’s awareness of the risk, and was admissible on that basis.” (Id. at pp. 1205-1206.) The court also found that the trial court did not abuse its discretion under Evidence Code section 352 “in light of the clear relevance of the evidence” and the court’s admonishment to the jury that the evidence was introduced “for the limited purpose of showing [Ochoa’s] state of mind at the time of the offense[.]” (Id. at p. 1206.)
Defendant argues that Ochoa is distinguishable because Ochoa was required to attend an alcohol awareness class that included discussion of the dangers of driving and drinking; defendant contends that it was the knowledge gained from the class, not the prior act of drinking while intoxicated, that was admissible. However, as the People argue, Ochoa is not so limited. (Ochoa, supra, 6 Cal.4th at p. 1204.) The court held that the evidence was admissible to show what a reasonable person in Ochoa’s position would have known. Attendance at an alcohol awareness class may have been relevant to his knowledge, but it was not the only admissible, relevant evidence.
It has been held in another context that evidence of prior accidents or driving violations is admissible to show a defendant’s knowledge of the consequences of unsafe driving. “A jury is entitled to infer that regardless of the mental state or condition that accompanies an instance of reckless driving—whether intoxication, rage, or willful irresponsibility—the driver’s subsequent apprehension and prosecution for that conduct must impart a knowledge and understanding of the personal and social consequences of such behavior.” (Ortiz, supra, 109 Cal.App.4th at p. 115.) Defendant argues that “Ortiz is absolutely irrelevant to the issues in this appeal” because the defendant in that case was charged with second degree murder, not manslaughter, and the prior conduct was relevant to defendant’s mens rea of implied malice. While the distinction may be noteworthy in other instances, the general proposition that such prior incidents are relevant to the mental state of a defendant who has engaged in reckless driving holds, even if that mental state does not involve mens rea for implied malice. Therefore, defendant’s distinction is not persuasive.
Ultimately, defendant’s argument comes down to the assertion that the circumstances of his case are dissimilar from those discussed in Ortiz and Ochoa, and that admission of the 1997 and 2001 prior acts was unduly prejudicial in light of their purported lack of relevance. We disagree. As the trial court indicated, defendant’s previous experience of engaging in unsafe driving resulted in a passenger being killed, and put him on clear notice of the dangers of such driving. Similarly, that he was fined substantially for excessive speeding indicated to him that his actions were not reasonable and were considered dangerous under the law. In light of the evidence that defendant was speeding as he weaved in and out of the lanes of a wet freeway when he crashed his Firebird, and that this resulted in the death of his passenger, this evidence was plainly relevant to what defendant knew from his own experience at the time of the crash.
We also have no reason to disturb the trial court’s determination that the admission of the evidence of these prior acts was not unduly prejudicial. Defendant points out that he was not charged in the 1997 crash, but we have no doubt that this evidence had “substantial probative value” under the circumstances. (See People v. Ewoldt (1994) 7 Cal.4th 380, 404 [noting that the prejudice caused by admission of uncharged offenses “ ‘requires extremely careful analysis’ ” and that the offenses must have “ ‘substantial probative value’ ”].)
In light of our ruling, we do not address the appellate arguments regarding whether or not any error by the trial court was harmless.
In short, defendant does not establish that the trial court abused its discretion in admitting the evidence of his prior bad acts in 1997 and 2001.
IV. Defendant’s Allegations of Prosecutorial Misconduct
Defendant argues that the prosecutor repeatedly engaged in prosecutorial misconduct during his closing argument to the jury. Defendant has forfeited these arguments by failing to object below.
“ ‘ “ ‘A prosecutor’s... intemperate behavior violates the federal Constitution when it comprises a pattern of conduct “egregious that it infects the trial with such unfairness as to make the conviction a denial of due process.” ’ ” [Citations.] Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves “ ‘ “the use of deceptive or reprehensible methods to attempt to persuade either the trial court or the jury.” ’ ” ’ ” (People v. Hill (1998) 17 Cal.4th 800, 819.) To preserve a claim of prosecutorial misconduct, a defendant must object, specify the nature of his objection, and ask that the court give an admonition to the jury, unless the objection would be futile or the admonition would be insufficient to cure the alleged harm. (People v. Panah (2005) 35 Cal.4th 395, 462.) One exception to this forfeiture is that “the objection and/or request for an admonition would have been futile.” (Ibid.)
Defendant argues that the prosecutor committed misconduct in his rebuttal argument, such as when, in apparent response to a defense argument urging jurors confronting their doubts “now” rather than “tomorrow,” (to which the court sustained the prosecutor’s objection), the prosecutor declared that there was “no tomorrow” for the victim of the crash, or the victim of the 1997 crash, and that it was “an insult.” Defendant also argues that the prosecutor committed misconduct when he spoke at some length about the death of the 1997 passenger and how the prosecutor “would hope” that defendant would have learned “a lesson about the fragility of life,” contending this was a prejudicial appeal to passion and prejudice and an improper argument about defendant’s propensity. Defendant concedes that he made no objection to the prosecutor’s rebuttal arguments. He contends that since the trial court had overruled defense counsel’s previous objection to the prosecutor’s “similar” closing remarks about defendant having to tell the parents of the victim in the 1997 crash about his death and going to that victim’s funeral, any objection would have been “futile.” This is not persuasive. Although the prosecutor referred to the 1997 passenger in this prior statement, his subsequent statements were not particularly similar, nor did the court’s overruling of the previous objection signal anything beyond the court’s evaluation of those particular statements. Therefore, defendant has waived his appellate claims about the prosecutor’s “no tomorrow,” “fragility of life,” and other rebuttal remarks.
Defendant further argues that the prosecutor’s argument about defendant’s 2001 citation for speeding, such as when the prosecutor referred to defendant’s driving at 131 miles per hour as “insane,” was “as pure a propensity argument as one can get.” Defendant also contends that the prosecutor made “dramatic additions” to the record by referring to defendant’s “souped-up Firebird” and his shifting into a sixth gear, neither of which was supported by evidence. Once more, defendant concedes that he made no objection to these arguments. Therefore, defendant has waived any prosecutorial misconduct claims based upon them. (People v. Panah, supra, 35 Cal.4th at p. 462.)
In light of our finding of waiver, we need not address the merits of defendant’s arguments.
In light of our ruling, we also reject defendant’s argument that the cumulative effect of the trial court’s purported errors was prejudicial.
DISPOSITION
The judgment is affirmed.
We concur:
Haerle, Acting P.J., Richman, J.