Opinion
D068770
10-19-2017
THE PEOPLE, Plaintiff and Respondent, v. ANDREW AUNE, Defendant and Appellant.
Susan L. Ferguson, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Alan L. Amann, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION ON REMAND FROM THE CALIFORNIA SUPREME COURT
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCS275733) APPEAL from a judgment of the Superior Court of San Diego County, Edward P. Allard, III, Judge. Affirmed. Susan L. Ferguson, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Alan L. Amann, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted Andrew Aune of grand theft. The trial court placed Aune on three years' formal probation and sentenced him to 90 days in the electronic surveillance program. Aune appealed, claiming the court improperly denied his Batson/Wheeler motion based on the prosecution's peremptory challenges to two African-Americans from the jury panel. We rejected this argument and affirmed the judgment. (People v. Aune (Sept. 1, 2016, D068770) [nonpub. opn.], review granted Dec. 14, 2016, S237808 (Aune I).) Aune filed a petition for review, which was granted and held pending the California Supreme Court's resolution of People v. Enriquez, S224724. On June 1, 2107, the Supreme Court issued its opinion in that case. (People v. Gutierrez (2017) 2 Cal.5th 1150 (Gutierrez).) On August 16, 2017, the Supreme Court transferred the matter back to this court with directions to reconsider the cause in light of the decision in Gutierrez. We requested supplemental briefing addressing Gutierrez, focusing on whether a comparative juror analysis supported the prosecutor's reasons for excluding Juror 30 and denial of defendant's motion under Batson, supra, 476 U.S. 79 and Wheeler, supra, 22 Cal.3d 258. We received and considered those submissions. We have reconsidered the cause in light of Gutierrez and affirm the judgment.
Batson v. Kentucky (1986) 476 U.S. 79 (Batson); People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler), overruled in part by Johnson v. California (2005) 545 U.S. 162, 165.
The Gutierrez case involved three defendants, including defendant Enriquez. (See Gutierrez, supra, 2 Cal.5th 1150.)
FACTUAL BACKGROUND
Aune and codefendant Alexander Bieler stole about $18,000 worth of cellular telephones from a Verizon mall kiosk. A tracking device inside of one of the stolen boxes led police to a location in Bonita. Police detained a truck, driven by Aune, that contained some of the stolen merchandise. Police found Bieler in a nearby house, and a bag containing 29 of the stolen telephones in the garage of the home.
DISCUSSION
A. Legal Principles
The use of peremptory challenges to remove a prospective juror because of that juror's race or ethnicity is unconstitutional discrimination. (Batson, supra, 476 U.S. at pp. 86-87; Wheeler, supra, 22 Cal.3d at pp. 276-277.) There are three steps in establishing a Batson/Wheeler claim. First, a defendant must make a prima facie case by showing that the prosecutor exercised a peremptory challenge based on race. (People v. Lenix (2008) 44 Cal.4th 602, 612 (Lenix).) To make a prima facie showing, the defendant need only produce evidence sufficient to permit the trial judge to draw an inference that discrimination has occurred. (People v. Cornwell (2005) 37 Cal.4th 50, 66.) If that is done, the People must show race-neutral reasons for the challenge. (Lenix, at p. 612.) The prosecutor's justification for the peremptory challenge need not rise to the level of a challenge for cause, and even a trivial reason, if genuine and neutral, may suffice. (Id. at p. 613.)
The third stage of the Batson/Wheeler inquiry " '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.' [Citation.] In assessing credibility, the court draws upon its contemporaneous observations of the voir dire. It may also rely on the court's own experiences as a lawyer and bench officer in the community, and even the common practices of the advocate and the office that employs him or her." (Lenix, supra, 44 Cal.4th at p. 613, fn. omitted.)
"[T]he issue is not whether there is a pattern of systematic exclusion; rather, the issue is whether a particular prospective juror has been challenged because of group bias." (People v. Avila (2006) 38 Cal.4th 491, 549.) Even a single discriminatory exclusion may violate a defendant's right to a representative jury. (Ibid.) The trial court's findings on purposeful discrimination turn largely on credibility, and on appeal we review the court's ruling for substantial evidence. (Lenix, supra, 44 Cal.4th at pp. 613-614.) " 'We presume that a prosecutor uses peremptory challenges in a constitutional manner and give great deference to the trial court's ability to distinguish bona fide reasons from sham excuses. [Citation.] So long as the trial court makes a sincere and reasoned effort to evaluate the nondiscriminatory justifications offered, its conclusions are entitled to deference on appeal.' " (Ibid.)
B. Background
Aune is Caucasian. During voir dire, defense counsel objected to the prosecutor's use of peremptory challenges to remove the only two African-American jurors on the entire panel. Prospective Juror Number 4 (Juror 4) supervised a unit of social workers and served on an advisory committee with police officers and sheriff's deputies. She was formerly in the Navy and had friends and family who served in the Navy. Prospective Juror Number 30 (Juror 30) had her purse stolen from a shopping cart. The ex-husband of Juror 30 previously worked for Verizon and both of her sisters worked in law enforcement.
The prosecutor excused Juror 4. The prosecutor later excused Juror 30, prompting a Batson challenge. After the trial court concluded that defense counsel had made a prima facie showing, the prosecutor explained that she struck Juror 4 based on her response to a hypothetical question about convicting a person using circumstantial evidence. Juror 4 stated she would "at least want more than that" explaining that she had six brothers who could "set the stage" so that someone else took the blame. The court stated that if it were a prosecutor it "probably would have struck" Juror 4 based on her response to the hypothetical question. Since there was a substantial basis to strike Juror 4, the court found that the defense failed to show a "discriminatory pattern." When asked to explain why she excused Juror 30, the prosecutor stated Juror 30 had not responded to "questions very in-depth" and she "just got a weird feeling about" Juror 30. The trial court denied the Batson challenge. It found the prosecutor had a legitimate basis for striking Juror 4. As to Juror 30, the court found that the prosecutor had not pointed to anything in particular, but demonstrated based on her review of the questions and answers that another juror would be better for her.
C. Analysis
As a preliminary matter, the trial court found defense counsel had made a prima facie showing that the prosecutor exercised peremptory challenges based on race when she excluded the only two African-Americans from the venire. Thus, the burden shifted to the prosecution to show race-neutral reasons for the challenges. (Lenix, supra, 44 Cal.4th at p. 612.) Aune does not contest the prosecution's showing as to Juror 4, who had expressed a concern about convicting a defendant based solely on circumstantial evidence, a genuine race-neutral reason. Rather, Aune contends the trial court erred in ruling that a race-neutral explanation for removing Juror 4 rendered further inquiry as to Juror 30 unnecessary because there was no pattern of racial discrimination.
A trial court errs when it focuses only on a pattern of discrimination through multiple excusals in making a prima facie case of racial discrimination. (People v. Avila, supra, 38 Cal.4th at pp. 554-555 [trial court was under the mistaken impression that only a pattern of discrimination through multiple excusals could make prima facie showing].) Here, the trial court found Aune had made a prima facie showing; thus, it is unclear why the trial court referenced the lack of pattern evidence. Putting aside the trial court's statement regarding pattern evidence, the record does not support Aune's contention that the trial court failed to inquire as to the prosecutor's reason for removing Juror 30. Rather, the trial court found "a legitimate basis" for removing Juror 4 and then asked the prosecutor: "Explain as to Juror 30." Thus, the record does not support Aune's contention that the trial court failed to conduct any analysis or inquiry into the prosecutor's reasons for dismissing Juror 30.
Aune's complaint appears to be with the prosecutor's explanation and the trial court's subsequent implied finding that Aune had not shown purposeful racial discrimination. The prosecutor explained that she excused Juror 30 because Juror 30 had not responded to "questions very in-depth" and the prosecutor "got a weird feeling about her." As our high court has explained, the focus of a Batson/Wheeler inquiry "is on the subjective genuineness of the race-neutral reasons given for the peremptory challenge, not on the objective reasonableness of those reasons." (People v. Reynoso (2003) 31 Cal.4th 903, 924 (Reynoso).)
Before denying the motion, the trial court never expressly found that the prosecutor had race-neutral reasons for excusing Juror 30. Rather, the trial court stated that the prosecutor need not point to anything in particular as to why she excused Juror 30, but that the prosecutor demonstrated, based on the questions and answers, the prosecutor believed other jurors would be better. Aune takes issue with the trial court's statement that the prosecutor preferred other jurors, stating this is not a race-neutral explanation. Had the prosecutor stated that she preferred another juror as her sole reason for excusing Juror 30, this would not have been race-neutral. (People v. Cisneros (2015) 234 Cal.App.4th 111, 120-121 [prosecutor's statement that she excused two prospective jurors because she preferred the next prospective juror, without more, is not adequate nondiscriminatory justification for the excusal].) Here, however, the prosecutor did not make this statement and the trial court's observation that the prosecutor preferred another juror over Juror 30 does not detract from the race-neutral reasons for the excusal actually tendered by the prosecutor. --------
Here, while the prosecutor's reasons for excusing Juror 30 might not appear reasonable, they were nondiscriminatory. (See, e.g., Lenix, supra, 44 Cal.4th at p. 613 ["A prospective juror may be excused based upon facial expressions, gestures, hunches, and even for arbitrary or idiosyncratic reasons."].) We reject the underlying premise of Aune's argument that the trial court failed to conduct a proper inquiry into the prosecutor's explanations for her peremptory challenge of Juror 30. The 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. Reynoso, supra, 31 Cal.4th at p. 919.) The prosecutor provided race-neutral reasons for excusing Juror 30, the trial court assessed the prosecutor's explanation and necessarily concluded it was subjectively genuine. Moreover, defense counsel did not object to or disagree with the prosecutor's stated reasons for excusing Juror 30. (See People v. Adanandus (2007) 157 Cal.App.4th 496, 510 [defense counsel's failure to contradict the prosecutor's characterization of the stricken jurors' demeanor or manner of responding suggested it was accurate].) Additionally, the trial court had the benefit of its contemporaneous observations of both voir dire and the prosecutor's demeanor and, in the absence of exceptional circumstances, we must defer to the trial court's credibility determination regarding a prosecutor's proffered reason for excusing a juror. (Lenix, at p. 614.)
Although Aune did not compare the answers of jurors peremptorily challenged with those not challenged before the trial court, comparative juror analysis may occur for the first time on appeal during review of the third stage of Batson/Wheeler claims " 'if relied upon by defendant and the record is adequate to permit the urged comparisons.' " (Gutierrez, supra, 2 Cal.5th at p. 1174.) In Gutierrez, the prosecution used 10 out of 16 strikes to remove jurors who shared the same ethnicity as defendants (Hispanic), four of these challenges were consecutive, and when the motion was made, 10 out of 12 Hispanic panelists (83 percent) who had entered the jury box had been peremptorily struck by the prosecution. (Id. at p. 1171.) Under these facts and as to one juror, our high court concluded that "[b]ecause the prosecutor's reason for this strike was not self-evident and the record is void of any explication from the court, we cannot find under these circumstances that the court made a reasoned attempt to determine whether the justification was a credible one." (Id. at p. 1172.)
Comparative juror analysis, however, is subject to inherent limitations especially where, as here, the analysis is performed for the first time on appeal. (Snyder v. Louisiana (2008) 552 U.S. 472, 483 ["[A] retrospective comparison of jurors based on a cold appellate record may be very misleading when alleged similarities were not raised at trial."]; Gutierrez, supra, 2 Cal.5th at p. 1174.) "A transcript will show that the panelists gave similar answers; it cannot convey the different ways in which those answers were given. Yet those differences may legitimately impact the prosecutor's decision to strike or retain the prospective juror. When a comparative juror analysis is undertaken for the first time on appeal, the prosecutor is never given the opportunity to explain the differences he [or she] perceived in jurors who seemingly gave similar answers." (Lenix, supra, 44 Cal.4th at p. 623.)
As a reviewing court undertaking comparative juror analysis for the first time we "need not consider responses by stricken panelists or seated jurors other than those identified by the defendant in the claim of disparate treatment." (Lenix, supra, 44 Cal.4th at p. 624.) In his opening brief, Aune argued that Juror 30 had attributes that appeared favorable to the prosecution and were similar to seated Juror 17. Aune also argued that Juror 30 did not answer any questions less in-depth than many of seated jurors and that the prosecutor also had a "weird feeling" about Juror 3, but Juror 3 was allowed to serve on the jury.
Juror 30's ex-husband worked for Verizon a few years ago and her sisters were police officers. Similarly, seated Juror 17's cousin formerly worked for Verizon and Juror 17 had several friends who are in the police force or with the border patrol, and a father-in-law and another relative who were correctional officers. Juror 30 was a senior administrator of a large accounting firm and had never served on a jury. Seated Juror 17 is a mechanic with a wife who is a paralegal and had never served on a jury. Seated Juror 3 served as a juror two times as the foreperson in criminal cases and did not reach a verdict in one instance.
While excused Juror 30 and seated Juror 17 had relatives who formerly worked for Verizon and relatives in law enforcement, the prosecutor cited neither of these attributes as a reason for excusing Juror 30. Rather, the prosecutor stated that Juror 30 did not respond to "questions very in-depth" and "got a weird feeling about her." Juror 30 was one of many prospective jurors who was not individually questioned by the court or one of the attorneys. Defense counsel did not object to the prosecutor's claim of a "weird feeling" regarding Juror 30 or disagree with the prosecutor's statement that Juror 30 did not answer questions in-depth. The prosecutor did not have the opportunity to explain why she did not challenge other seated jurors for these reasons, such as seated Juror 3, who the prosecutor also claimed gave her a "strange feeling." Thus, the record renders it difficult for us to review the prosecutor's stated grounds for excusing Juror 30 for the first time on appeal.
Aune's primary complaint in his supplemental brief is that the trial court did not make "a sincere and reasoned effort to evaluate the prosecutor's justifications" for excusing Juror 30. As we previously noted, a trial court is not required to comment on why it accepted a prosecutor's race-neutral reason for exercising a peremptory challenge as genuine. (Reynoso, supra, 31 Cal.4th at p. 919.) The fact the trial court immediately denied the motion after the prosecutor explained her reasons for excusing Juror 30 does not necessarily show that the trial court did not make a sincere and reasoned attempt to evaluate the prosecutor's credibility. As our high court explained in People v. Lewis (2008) 43 Cal.4th 415, the "court denied the motions only after observing the relevant voir dire and listening to the prosecutor's reasons supporting each strike and to any defense argument supporting the motions. 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." (Id. at p. 471.)
Excusing a prospective juror based on a "weird feeling" is nondiscriminatory. (Lenix, supra, 44 Cal.4th at p. 613 [facial expressions, gestures, hunches are nondiscriminatory reasons].) Moreover, the prosecutor's claim that she got a "weird feeling" from Juror 30 is not implausible, nor is it contradicted by the record. Excusing a prospective juror based on the lack of "in-depth" answers is also nondiscriminatory. Here, however, Juror 30 was one of many prospective jurors who counsel did not question individually. Accordingly, the prosecutor's complaints regarding a "weird feeling" and lack of "in-depth" answers likely pertain to Juror 30's personal presentation and her demeanor throughout the voir dire process. On this point the trial court could have made a better record by noting that Juror 30 was one of many prospective jurors who counsel did not question and asking the prosecutor to further explain her reasons.
Nonetheless, in evaluating the genuineness of a prosecutor's justifications for excusing a prospective juror, the trial court's "sincere and reasoned attempt to evaluate the prosecutor's explanation" is conducted "in light of the circumstances of the case as then known, [the trial court's] knowledge of trial techniques, and . . . observations of the manner in which the prosecutor has examined members of the venire and has exercised challenges for cause or peremptorily, for 'we rely on the good judgment of the trial courts to distinguish bona fide reasons for such peremptories from sham excuses belatedly contrived to avoid admitting acts of group discrimination.' " (People v. Hall (1983) 35 Cal.3d 161, 167-168.) Our "role in reviewing a Batson/Wheeler claim is not to engage in speculation, but to instead draw appropriate inferences from the record under the deferential standard made applicable by this court in Wheeler, and by the high court in Batson." (Reynoso, supra, 31 Cal.4th at p. 928, fn. 9.) "[F]or example, if a prosecutor believes a prospective juror with long, unkempt hair, a mustache, and a beard would not make a good juror in the case, a peremptory challenge to the prospective juror, sincerely exercised on that basis, will constitute an entirely valid and nondiscriminatory reason for exercising the challenge. (Id. at p. 924.)
Finally, during first stage review our high court noted that "the small number of African-Americans in the jury pool makes 'drawing an inference of discrimination from this fact alone impossible.' " (People v. Harris (2013) 57 Cal.4th 804, 835; People v. Garcia (2011) 52 Cal.4th 706, 747 ["[w]hile no prospective juror may be struck on improper grounds, we have found it ' "impossible," ' as a practical matter, to draw the requisite inference where only a few members of a cognizable group have been excused"].) Here, Juror 30 was only one of two African-Americans on the jury panel. This fact makes the instant case distinguishable from Gutierrez, in which the prosecution had used a disproportionate number of its peremptory strikes—10 out of 16—to remove Hispanics from the jury panel. (Gutierrez, supra, 2 Cal.5th at p. 1171.) Additionally, the Gutierrez court noted "that passes while a specific panelist remains on the panel ' "strongly suggest[ ] that race was not a motive" ' in [the] challenged strikes." (Id. at p. 1170.) Here, Juror 30 was the third to the last challenge exercised by the People.
In summary, having considered all the circumstances of this case, the trial court properly exercised its discretion in denying Aune's Batson/Wheeler motion.
DISPOSITION
The judgment is affirmed.
HALLER, Acting P. J. WE CONCUR: O'ROURKE, J. AARON, J.