Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
San Francisco County Super. Ct. No. SCN196234
Ruvolo, P. J.
I.
Introduction
A jury convicted appellant Wallace Batiste of grand theft (Pen. Code, § 487, subd. (c)). He appeals, claiming the trial court erred in finding that he had not established a prima facie case of group bias during jury selection “where the only black [prospective juror] to reach the jury box was peremptorily challenged by the prosecutor . . . .” (See People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler) and Batson v. Kentucky (1986) 476 U.S. 79 (Batson). Appellant also claims his sentence violates Cunningham v. California (2007) 549 U.S.___ [127 S.Ct. 856] (Cunningham), because the trial court imposed an upper term based on facts that were neither found by the jury nor admitted by appellant. We affirm.
All statutory references are to the Penal Code.
II.
Facts and Procedural History
San Francisco Police Officer Kevin Healy testified that on July 6, 2005, at approximately 1:15 p.m., he was acting as a decoy officer on the robbery abatement team. The decoy operation involved 16 officers and took place on Howard Street between Fifth and Sixth Streets. Officer Healy acted as though intoxicated and wore dirty clothes, including wearing a long-sleeved shirt with a left breast pocket.
Prior to that operation, Officer Healy had been given funds to carry in his pocket which had been marked and photocopied. In his left shirt pocket, he placed three crumpled bills, one $20 bill, one $10 bill, and one $5 bill, positioning them so that they were partly out of the pocket and could be easily seen while he acted intoxicated and vulnerable.
Officer Healy saw appellant approach and start to pass on the officer’s left side. Then appellant reached his left hand into the officer’s shirt pocket. The officer saw a bill fall to the ground, but appellant was holding the other bills in his hand. Officer Healy gave a prearranged signal to another officer nearby, and appellant was apprehended and arrested. Officer Healy identified appellant at the scene; and two marked bills, a $10 bill and a $20 bill, were found in appellant’s possession.
The jury found appellant not guilty of second degree robbery (§ 212.5, subd. (c)) but guilty of the lesser offense of grand theft from a person (§ 487, subd. (c)). The trial court found appellant had suffered two prior strikes (§ 667, subds. (d), (e)) and two prior serious felony convictions (§ 667, subd. (a)). On June 29, 2006, appellant was sentenced to six years in state prison.
III.
Discussion
A. Jury Selection
Appellant first claims the trial court erred in finding that he had not established a prima facie case of group bias during jury selection with respect to the prosecutor’s use of a peremptory challenge to discharge potential Juror No. 9 (Juror 9).
The prosecution used its fourth peremptory challenge to excuse Juror 9. Defense counsel indicated that he would like to reserve an objection and make a Wheeler/Batson motion outside the presence of the jury. Jury selection continued, with additional potential jurors being called to the box from the jury panel. The prosecution used one additional peremptory challenge to excuse a prospective juror.
The California Constitution and the United States Constitution prohibit the exercise of peremptory challenges solely because of group bias. (Wheeler, supra, 22 Cal.3d 25; Batson, supra, 476 U.S. 79.)
The court heard defense counsel’s motion the next day. Defense counsel stated that appellant was an African-American male and that Juror 9 also appeared to be an African-American male. Defense counsel indicated that he saw no other potential jurors who were African-American men. The trial court disagreed and stated that there were at least two, and possibly three or four other potential jurors who appeared to be African-American men. The court acknowledged, however, that Juror 9 was the only African-American male called into the jury box.
Defense counsel argued that Juror 9 “gave appropriate answers to [the] questions”––he never indicated he could not be fair to either the prosecution or the defense. While he was “somewhat quiet,” he “appeared to give appropriate responses to any questions he was asked.” Counsel argued, “Maybe he’s shy. [¶] But, he never said anything that would justify a challenge for cause.”
The trial court asked whether the prosecutor wanted to respond as to whether a prima facie case had been made. The prosecutor stated that it was for the court to determine whether the defense had made a prima facie case, but offered to give an explanation as to her peremptory challenge if the court wished. The following exchange then occurred:
“THE COURT: Well, he was the only person. . . . [¶] I can’t really indicate one way or another whether or not there has been a pattern shown. [¶] I almost expected the defense to challenge him when he indicated he wanted to be a California Highway Patrolman.
“[DEFENSE COUNSEL]: It’s a noble profession.
“THE COURT: Yes. [¶] I have a relative who is a C.H.P. officer. [¶] But, I can’t say in light of all of the other challenges that were exercised that there really has been a prima facie case. He wasn’t the first. He was to be challenged, and he wasn’t challenged until somewhat late in the proceedings.
“[DEFENSE COUNSEL]: I believe he was not challenged until after the People had passed at least once.
“THE COURT: All right. [¶] So, I don’t think on that basis that there is a prima facie case that has been met. On that basis, I’ll deny the motion.”
Appellant contends the trial court should have found a prima facie case of purposeful discrimination in the prosecutor’s peremptory challenge of Juror 9, who, according to appellant, possessed “the profile of an ideal juror.” He was “a quiet, young, single, black man, recently out of school, unemployed, but in training at the Treasure Island Job Corps, who had listened attentively to questions by the court and counsel, and gave very [sic] outward indication that he could be fair . . . .”
In Johnson v. California (2005) 545 U.S. 162 (Johnson), the court reiterated the three-prong test for a showing of group bias in the prosecution’s exercise of peremptory challenges: “First, the defendant must make out a prima facie case ‘by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose.’ [Citations.] Second, once the defendant has made out a prima facie case, the ‘burden shifts to the State to explain adequately the racial exclusion’ by offering permissible race-neutral justifications for the strikes. [Citations.] Third, ‘[i]f a race-neutral explanation is tendered, the trial court must then decide . . . whether the opponent of the strike has proved purposeful racial discrimination.’ [Citation.]” (Johnson, supra, 545 U.S. at p. 168, fn. omitted.)
In the instant case, the trial court found that appellant had not cleared the first required hurdle, establishing a prima facie case that unlawful discrimination had occurred. A defendant may make out a prima facie case of group bias in jury selection by showing that “the totality of the relevant facts gives rise to an inference of discriminatory purpose. [Citation.]” (Batson, supra, 476 U.S. at p. 94.) In other words, a defendant makes out a prima facie case of group bias when he produces “evidence sufficient to permit the trial judge to draw an inference that discrimination has occurred.” (Johnson, supra, 545 U.S. at p. 170.) The defendant “ultimately carries the ‘burden of persuasion’ to ‘ “prove the existence of purposeful discrimination.” ’ [Citation.]” (Id. at pp. 170-171.)
Of course, “‘[e]ven the exclusion of a single prospective juror may be the product of an improper group bias. As a practical matter, however, the challenge of one or two jurors can rarely suggest a pattern of impermissible exclusion.’ [Citation.]” (People v. Bell (2007) 40 Cal.4th 582, 598, fn. omitted (Bell); accord, People v. Bonilla (2007) 41 Cal.4th 313, 343 (Bonilla).)
We do not agree with appellant that the trial court’s comments reflect the mistaken belief that discriminatory excusal of a single juror was insufficient to establish a prima facie case. In reading the court’s comments, it is plain that the court was making the same observation recently made by our Supreme Court that “a pattern [of systematic exclusion] will be difficult to discern when the number of challenges is extremely small.” (Bonilla, supra, 41 Cal.4th at p. 343, fn. 12.)
We apply a de novo standard of review, examining the entire record of voir dire to determine “ ‘the legal question whether the record supports an inference that the prosecutor excused a juror on the basis of race.’ [Citation.]” (People v. Avila (2006) 38 Cal.4th 491, 554, italics omitted; Bell, supra, 40 Cal.4th at p. 597.) In conducting our review, we “bear in mind that peremptory challenges are not challenges for cause––they are peremptory. . . . [S]uch challenges may be made on an ‘apparently trivial’ or ‘highly speculative’ basis. [Citation.]” (People v. Jones (1998) 17 Cal.4th 279, 294.) Thus, it is difficult to assess the bona fides of the exercise of peremptory challenges because subjective considerations, such as reliance on body language and the prospective juror’s mode of answering questions are permissible in exercising peremptory challenges. (People v. Johnson (1989) 47 Cal.3d 1194, 1219.)
Having reviewed the entire record of voir dire, we find no error in the trial court’s determination that no prima facie case had been established. Even though the prosecution was never asked to state a race-neutral explanation for discharging Juror 9, where the record suggests grounds upon which the prosecutor might reasonably have challenged the jurors in question, we will affirm the ruling. (People v. Guerra (2006) 37 Cal.4th 1067, 1101.) During the prosecution’s questioning of Juror 9, he was obviously uncomfortable answering questions, causing the prosecutor to remark, “I am sorry. I don’t mean to pick on you, you were so quiet. I just want to get to know you a little bit better, that’s all.”
Later, when Juror 9 was asked by defense counsel to state his attitude about decoy operations, Juror 9’s reply is reported in the transcript as “Hmm . . . .” Defense counsel indicated, “I don’t mean to put you on the spot . . . . [¶] Okay. You think about that a minute.” Defense counsel then questioned other prospective jurors and did not return to Juror 9. Juror 9’s reluctance to answer questions provides a possible legitimate reason for why the prosecution may have excused him. (People v. Reynoso (2003) 31 Cal.4th 903, 925-926 [juror peremptorily discharged for not paying attention to the proceedings, and not being sufficiently involved in the jury selection process to make a good juror].)
Appellant next attempts to utilize comparative juror analysis to show that Juror 9’s responses were not very different from the responses of another prospective juror who was not excused. Appellant, however, never presented this comparative juror analysis in the trial court. Our Supreme Court has repeatedly stated that where, as here, a defendant has failed to make out a prima facie showing of group bias, “a comparison of the challenged prospective jurors and seated jurors [is] neither necessary nor appropriate.” (Bell, supra, 40 Cal.4th at p. 600.) Where “no reasons for the prosecutor’s challenges were accepted or posited by either the trial court or this court, there is no fit subject for comparison. Comparative juror analysis would be formless and unbounded.” (Id. at p. 601; accord, Bonilla, supra, 41 Cal.4th at p. 350 [declining to engage in comparative juror analysis in a “ ‘first-stage’ Wheeler/Batson case” and reaffirming such analysis of “little or no use” regardless of “[w]hatever use comparative juror analysis might have in a third-stage case for determining whether a prosecutor’s proffered justifications for his strikes are pretextual”].)
Appellant disagrees with our Supreme Court’s resolution of this issue. He argues that “United States Supreme Court precedent supports and requires a comparative juror analysis, even when the trial court has found no prima facie case has been established.” We are, nonetheless, bound by our state high court’s decisions. (See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
In conclusion, the record as a whole fails to support a reasonable inference that the prosecutor’s peremptory challenge of Juror 9 reflected the discriminatory purpose of eliminating an African American from the jury.
B. Upper Term Sentence
The trial court sentenced appellant to the upper term of three years for the current grand theft offense (§ 487, subd. (c)) and doubled the term to six years pursuant to a prior robbery strike allegation. In selecting the upper term, the trial court cited three aggravating factors: 1) “numerous prior convictions,” 2) a “number of prior prison terms,” and 3) “his past performance on probation or parole is not satisfactory.”
In his opening brief, appellant claims his upper term sentence must be vacated and the case remanded for a new sentencing hearing in light of Cunningham because he was deprived of his constitutional right to a jury trial on the factors on which the trial court relied in imposing an upper term sentence. (Cunningham, supra, 549 U.S. at p. ___ [127 S.Ct. at p. 860].)
On July 19, 2007, before this case was fully briefed, the California Supreme Court issued its decision in People v. Black (2007) 41 Cal.4th 799 (Black). In Black, our Supreme Court concluded that because “the existence of a single aggravating circumstance is legally sufficient to make the defendant eligible for the upper term,” “if one aggravating circumstance has been established in accordance with the constitutional requirements . . ., the defendant is not ‘legally entitled’ to the middle term sentence, and the upper term sentence is the ‘statutory maximum’ ” for Sixth Amendment purposes. (Id. at p. 813, fn. omitted.) Applying that conclusion to the facts before it, Black noted that the United States Supreme Court “consistently has stated that the right to a jury trial does not apply to the fact of a prior conviction. . . . ‘[R]ecidivism . . . is a traditional, if not the most traditional, basis for a sentencing court’s increasing an offender’s sentence.’ [Citation.]” (Black, supra, 41 Cal.4th at p. 818.)
In the present case, as in Black, appellant’s constitutional right to a jury trial was not violated by the imposition of the upper term for the grand theft offense (§ 487, subd. (c)) because all of the aggravating factors cited by the trial court were recidivist factors established by means that satisfied the requirements of the Sixth Amendment. Black held that the Sixth Amendment does not confer a right to a jury trial on either “the fact that a prior conviction occurred” or “other related issues that may be determined by examining the records of the prior convictions. Citations.” (Black, supra, 41 Cal.4th at p. 819.) Illustrative of this interpretation, the Black court held the aggravating factors of numerous or increasingly serious prior convictions were within the recidivist exception. The Black court explained that findings of increasing seriousness “require consideration of only the number, dates, and offenses of the prior convictions alleged,” and these types of determinations were “ ‘quite different from the resolution of issues submitted to a jury,’ ” and more appropriate for a court. (Id. at pp. 819-820.) Appellant acknowledges that Black “is controlling in California state courts” and “this court is required to follow” its holding.
The trial court’s findings regarding appellant’s prior criminal record fall squarely under the recidivist exception as interpreted in Black. The determination that appellant had numerous prior convictions and his prior performance on probation or parole was unsatisfactory can be made from official records related to his prior convictions and does not require the court to make subjective factual determinations about appellant’s past criminal conduct. Accordingly, because all the aggravating circumstances found by the trial court fell within the recidivist exception as interpreted by Black, thus the trial court’s sentencing choice did not offend Cunningham.
IV.
DISPOSITION
The judgment is affirmed.
We concur: Reardon, J., Sepulveda, J.