Opinion
F071915
05-03-2018
THE PEOPLE, Plaintiff and Respondent, v. ADALBERTO HERNANDEZ BRAVO et al., Defendants and Appellants.
Sylvia W. Beckham, under appointment by the Court of Appeal, for Defendant and Appellant Adalberto Hernandez Bravo. Tracy A. Rogers, under appointment by the Court of Appeal, for Defendant and Appellant Jose Francisco Lara. Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Catherine Tennant Nieto, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. Nos. BF155975A, BF155975B)
OPINION
APPEALS from a judgment of the Superior Court of Kern County. John R. Brownlee, Judge. Sylvia W. Beckham, under appointment by the Court of Appeal, for Defendant and Appellant Adalberto Hernandez Bravo. Tracy A. Rogers, under appointment by the Court of Appeal, for Defendant and Appellant Jose Francisco Lara. Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Catherine Tennant Nieto, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
Following a jury trial, codefendants Adalberto Hernandez Bravo and Jose Francisco Lara were convicted of a multitude of felony and misdemeanor offenses stemming from a theft related crime spree that spanned May, June and July 2014.
The charges brought against Bravo were limited to crimes that occurred in July 2014.
On appeal, Bravo, joined by Lara, claims the prosecutor committed reversible error during jury selection under Batson v. Kentucky (1986) 476 U.S. 79 (Batson) and People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler). Bravo also claims his conviction on count 6 for second degree burglary is unsupported by substantial evidence; Lara claims his conviction on count 19 for driving on a suspended license is unsupported by substantial evidence. Additionally, Bravo and Lara both raise instructional errors; Bravo claims multiple punishment on counts 7, 8, and 9 is unauthorized; and Lara claims cumulative error. In a supplemental brief, Bravo, again joined by Lara, claims that under the California Supreme Court's decision in People v. Gonzales (2017) 2 Cal.5th 858 (Gonzales), they are entitled to have their felony conviction for second degree burglary in count 7 reduced to misdemeanor shoplifting.
We agree that, as to Bravo, the sentence on count 9 should be stayed. And we agree with the People's concession, as to both Bravo and Lara, that the matter should be remanded for resentencing on count 7. In all other respects, we affirm.
STATEMENT OF THE CASE
A jury convicted Bravo and Lara of one felony count of second degree robbery (Pen. Code, § 212.5, subd. (c)) (count 3), two felony counts of second degree burglary (§ 460, subd. (b)) (counts 6 & 7), one felony count and two misdemeanor counts of receiving stolen property (§ 496, subd. (a)) (counts 8, 10 & 11), and one misdemeanor count of forgery (§ 470, subd. (d)) (count 9).
All further references are to the Penal Code unless otherwise specified.
Bravo was also charged with but acquitted of count 4 (felony second degree burglary), count 12 (misdemeanor receiving stolen property) and count 13 (felony receiving stolen vehicle).
Separately, Lara was convicted of three felony counts and two misdemeanor counts of second degree burglary (counts 1, 4, 26, 28 & 29); one felony count and four misdemeanor counts of receiving stolen property (counts 2, 12, 14, 23 & 27); one felony count of possession of a stolen vehicle (§ 496d, subd. (a)) (count 13); one misdemeanor count of forgery (§ 470, subd. (d)) (count 24); one misdemeanor count of petty theft (§ 488) (count 20); two misdemeanor counts of providing false identification to a peace officer (§ 148.9, subd. (a)) (counts 21 & 25); one felony count of taking a vehicle without consent (Veh. Code, § 10851, subd. (a)) (count 5); one misdemeanor count of driving on a suspended license (Veh. Code, § 14601.1, subd. (a)) (count 19); one misdemeanor count of possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a)) (count 15); and one misdemeanor count of possession of drug paraphernalia (Health & Saf. Code, § 11364.1) (count 22).
The consolidated information did not include counts 16, 17, or 18.
In a bifurcated proceeding, the trial court found true that Bravo served four prior prison terms (§ 667.5, subd. (b)), and that Lara had two prior strike convictions within the meaning of the three strikes law (§§ 667, subds. (c)-(j), 1170.12, subds. (a)-(e)) and served three prior prison terms (§ 667.5, subd. (b)).
On the prosecutor's motion prior to sentencing, the trial court dismissed counts 2, 8, 10, 11, 13, 20 and 23 as to Lara, and counts 10 and 11 as to Bravo, "in furtherance of justice" under section 1385.
In addition to restitution fines and fees, Lara was sentenced to an indeterminate term of 25 years to life, plus a determinate term of 30 years in state prison. On count 3 (robbery), he was sentenced to 25 years to life, plus an additional 10 years for his two prior strike convictions and three years for his three prior prison terms. (§§ 667, subds. (a), (e)(2)(A)(ii), 667.5, subd. (b).) On count 1 (second degree burglary), he received a consecutive upper term of three years, doubled for the strikes, plus an additional three years for his prior prison terms. (§§ 460, subd. (b), 667, subd. (e), 667.5, subd. (b).) On counts 4, 5, 6, 7, 14 and 28, he received six consecutive terms of 16 months (one-third of the middle term). Finally, he received concurrent jail terms of one year each for counts 12, 21, 24, 25, 26 and 29; six months each for counts 15 and 19; and 90 days for count 22. Sentences for counts 9 and 27 were stayed pursuant to section 654.
In addition to restitution and fines, Bravo was sentenced to a total determinate term of nine years in state prison. On count 3 (robbery), he received the middle term of three years, plus an additional four years for his four prior prison terms. (§§ 213, subd. (a)(2), 667.5, subd. (b).) On counts 6, 7 and 8 (burglary & receiving stolen property), he received three consecutive terms of eight months (one-third of the middle term). On count 9 (misdemeanor forgery), he received a concurrent one-year jail term.
STATEMENT OF THE FACTS
The statement of facts is a chronological summary of the charges against Bravo and Lara.
Count 1 (Second Degree Burglary - Lara); Count 2 (Misdemeanor Receiving Stolen Property - Lara (dismissed))
On May 7, 2014, Earlyn Gruber returned to her Toyota Tacoma in the Costco parking lot and found the window broken and her purse, containing her wallet, credit cards, social security card, and her checkbook, gone. A Costco surveillance video showed a white vehicle pulling up to the Tacoma and a subject getting out and standing by the driver's door. The video then showed the individual breaking the window and removing the purse. Surveillance videos from nearby ATM kiosks showed Lara attempting to withdraw money using Gruber's credit cards on May 9 and 10, 2014. Lara was able to withdraw $100 during one of the transactions. Count 26 (Misdemeanor Second Degree Burglary - Lara); Count 27 (Felony Receiving Stolen Property - Lara); and Count 28 (Second Degree Burglary - Lara)
On May 14, 2014, someone broke the front passenger window of Billy Harsh's Chevy pickup while he was working out at a 24-Hour Fitness. A backpack containing a change of clothes; a wallet containing $1,100 in cash, credit cards, social security card, and driver's license; and a pair of sunglasses were missing. A surveillance video from 24-Hour Fitness showed a white Cadillac sedan positioned next to the passenger side of Harsh's truck. After about a minute, the car left the parking lot.
On May 16, 2014, Lara and a woman attempted to use one of Harsh's credit cards in the electronics department of Target. When asked for identification, Lara refused to comply and the transaction was denied. Lara and the woman attempted to purchase other items and then exited the building and got into an "eggshell colored" sedan with license plate No. 4NWV231. A certified document showed Lara to be the registered owner of a 1992 Cadillac with that license plate number. Count 14 (Receiving Stolen Property Valued in Excess of $950 - Lara)
On May 20, 2014, Maria Sepulveda returned to her 2009 Scion after working out at the In-Shape gym and discovered the passenger window broken and a $1,000 Tory Burch handbag, $595 matching wallet, $700 cell phone, $350 worth of jewelry, $900 in cash, as well as her driver's license and credit cards, missing. Sepulveda was later notified by Target of fraudulent activity on her credit card. Target surveillance tapes of May 20, 2014, showed Lara and a female entering the store. Receipts from Target on that date showed purchases on Sepulveda's credit card in the amounts of $385.41, $537.82, and $4.98, and that several other charges were declined. Count 23 (Felony Receiving Stolen Property - Lara (dismissed)); Count 24 (Misdemeanor Check Fraud - Lara); Count 25 (False Representation of Identity to a Police Officer - Lara); and Count 29 (Second Degree Burglary - Lara)
On June 19, 2014, while Monica Melgoza was working out at the In-Shape Gym, someone broke into her 2004 Toyota Camry and took her purse containing her wallet, driver's license, several checks made out to her, a cell phone, and her and her son's social security cards. Melgoza's Visa debit card was used for a one-dollar transaction at Valley Plaza Mall, and an attempt was made to use the card for a $172 taxi service.
On June 20, 2014, Bakersfield Police Officer George Vasquez stopped a vehicle for a traffic violation. Before stopping the vehicle, Officer Vasquez noticed the front passenger, later identified as Lara, repeatedly turning towards his left and looking at the back seat. After the vehicle stopped, Officer Vasquez noticed Lara holding two cell phones. When asked for identification, Lara told the officer his name was "Diego Pimental," but a BlueCheck fingerprint scan device revealed Lara's identify. Inside the vehicle, Officer Vasquez found a stack of credit cards, checks, various identification cards, and a social security card.
Melgoza responded to the scene, where she identified her stolen checks, driver's license, social security card, and cell phone. In a check made out to Melgoza from Daniel Rodriguez, the name "Jose Lara" had been written on the "pay to" line as well. And on a check from Melgoza's father, Ignacio Medina, the name "Jose Lara" had been written on the "pay to" line over where Melgoza's name had been written and erased. There were photos of Lara on Melgoza's cell phone that had not been there before the phone was stolen. Count 3 (Second Degree Robbery - Bravo; Lara); Count 10 (Misdemeanor Receipt of Stolen Property - Bravo (dismissed); Lara (dismissed))
During the early morning hours of July 4, 2014, Julie Estes drove Jay Wheatley to the EconoLodge where he was staying. In the parking lot, she stopped the vehicle and left the car's motor running.
While in her vehicle, Estes saw Lara looking towards her car from the upstairs walkway of the motel. Lara approached Bravo at the stairwell, and the two had a conversation and then walked to Estes's car. Bravo asked Estes if he and Lara could get a ride, but Estes said no. Lara then became aggressive and said he needed her car and she should keep quiet so no one would get hurt.
Estes closed the front windows, leaving them only slightly lowered to hear what was being said; the back windows were open all the way. Bravo grabbed Estes's purse in the backseat and Estes grabbed the purse straps. Bravo ordered Estes to let go, the purse strap broke, Bravo stumbled backwards and fell, and he and Lara then fled with the purse, which contained Estes's wallet, credit cards, store membership cards, and cash.
Property belonging to Estes was later found in a Ford Explorer driven by Lara when he and Bravo were detained on July 9, 2014, at the Bank of America. Count 5 (Theft of a Vehicle - Lara; Bravo (acquitted)); Count 13 (Felony Receipt of Stolen Vehicle - Lara (dismissed))
On July 5, 2014, Lara filled out paperwork to purchase a 2002 Ford Explorer at Oasis Auto Sales in Bakersfield. The dealership allowed Lara to drive the car off the lot to retrieve money for the down payment, but he did not return, did not pay for the vehicle, and did not complete a transfer of title. On July 9, 2014, Lara was found in possession of the Explorer when he was detained at the Bank of America. Count 19 (Misdemeanor Driving on a Suspended License - Lara)
A certified Department of Motor Vehicles document showed Lara's driver's license had been suspended May 1, 2014. Count 4 (Second Degree Burglary - Lara; Bravo (acquitted)); Count 8 (Felony Receiving Stolen Property - Bravo; Lara (dismissed))
On the evening of July 5, 2014, a Toyota Highlander belonging to Adrian and Donna Robbe was burglarized while it was parked and locked at the Starplex Cinemas in Bakersfield. Property stolen included Donna Robbe's $2,550 engagement ring and personal checks and credit cards. Monique Garza was later found to be in possession of Donna Robbe's diamond ring, which had been given to her by Lara. Count 12 (Misdemeanor Receiving Stolen Property - Lara; Bravo (acquitted)); Count 20 (Misdemeanor Petty Theft - Lara (dismissed))
On July 6, 2014, Rosa Perez Molina reported that the front and back license plates (7BRM585) of her vehicle had been stolen. Molina did not give Lara or Bravo permission to be in possession of her license plates. Count 6 (Second Degree Burglary - Bravo; Lara); Count 11 (Misdemeanor Receiving Stolen Property - Bravo (dismissed); Lara (dismissed))
On July 9, 2014, Tricia Heston's purse, containing her wallet, driver's license, credit cards, gift cards, and her husband's iPhone, were stolen out of her husband's black Toyota Sequoia in the parking lot of the In-Shape Gym in Bakersfield. Several hours later, Heston was contacted by officers who had recovered her property. Count 7 (Second Degree Commercial Burglary - Bravo and Lara); Count 9 (Misdemeanor Check Fraud - Bravo and Lara); Count 15 (Possession of Methamphetamine - Lara); Count 21 (False Identification to an Officer - Lara); and Count 22 (Possession of Paraphernalia for the Ingestion of Controlled Substances - Lara)
On July 9, 2014, Bravo entered the Bank of America and presented a Bank of America check that had been stolen from Donna Robbe July 5, 2014, and made out to him in the amount of $220. Lara sat on a couch inside the bank while Bravo attempted to cash the check. Police officers responded to the bank. While officers were talking to Bravo and Lara, a review of the surveillance video from the bank showed Lara placing drugs and paraphernalia in the couch where he had been seated. Lara identified himself to police as "Diego Pimental." A search of Lara revealed a key to the stolen 2002 Ford Explorer in the parking lot, which contained various credit cards, checks, and identifications, some belonging to Heston and Estes. Telephone Calls from Jail
Lara made several calls from jail acknowledging he was captured on a number of surveillance videos. In one call, Lara informed the caller he was using her as an alibi witness for the incident on July 4, 2014, and told her that, if asked, she should tell the interviewer she was with him at a family gathering with several other people whom she should collaborate with.
DISCUSSION
I. BATSON/WHEELER CLAIM
Bravo and Lara, who are Hispanic, challenge the trial court's denial of their Batson/Wheeler motion, which was brought as a result of the prosecutor's excusals of three African-American prospective jurors. We find no error.
Bravo and Lara are identified as Hispanic in their probation reports.
A. Legal Principles
The federal and state Constitutions both prohibit a prosecutor's use of peremptory challenges to exclude prospective jurors based on race. (Batson, supra, 476 U.S. at p. 97; Wheeler, supra, 22 Cal.3d at pp. 276-277.) Although Bravo and Lara do not share the same racial identity as the excused jurors at issue here, a Batson/Wheeler challenge may still be raised. (People v. Parker (2017) 2 Cal.5th 1184, 1212 (Parker).)
Because Batson/Wheeler error "is structural, damaging the integrity of the tribunal itself," the remedy is a new trial without any inquiry into harmless error. (People v. Gutierrez (2017) 2 Cal.5th 1150, 1154 (Gutierrez); Wheeler, supra, 22 Cal.3d at p. 283.)
With respect to the selection of a jury, "[t]here is a rebuttable presumption that a peremptory challenge is being exercised properly, and the burden is on the opposing party to demonstrate impermissible discrimination." (People v. Bonilla (2007) 41 Cal.4th 313, 341.) A three-step procedure applies at trial when a defendant makes a Batson/Wheeler challenge. First, the defendant must make a prima facie showing that the prosecution exercised a challenge based on impermissible criteria. Second, if the trial court finds a prima facie case, then burden shifts and the prosecution "'must provide a "'clear and reasonably specific' explanation"'" of his race-neutral (i.e. legitimate) reasons for exercising the challenges. (People v. Winbush (2017) 2 Cal.5th 402, 434 (Winbush).) "[A] legitimate reason is one that does not deny equal protection." (People v. Lenix (2008) 44 Cal.4th 602, 613 (Lenix).) Third, the court determines whether the defendant has proven purposeful discrimination. "The ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike." (Id. at pp. 612-613.) At this third step, "'the trial court must determine whether the prosecution's offered justification is credible and whether, in light of all relevant circumstances, the defendant has shown purposeful race discrimination.'" (Parker, supra, 2 Cal.5th at p. 1211.) "[T]he adjudication of [a] Batson claim is, at bottom, a credibility determination." (Foster v. Chatman (2016) 578 U.S. ___ [136 S.Ct. 1737, 1765].) With these principles in mind, we examine the circumstances in this case.
B. Factual Background
The record indicates there were 78 potential jurors in the venire panel. From the venire, a group of 18 potential jurors was selected, seated in the jury box and examined through voir dire by the court and counsel. Following each voir dire session, jurors were selected from the venire panel to replace those jurors excused by stipulation, for cause or pursuant to the parties' peremptory challenges.
Over the course of the selection process, four African-American jurors were seated in the jury box and examined during voir dire. At issue are prospective jurors E.H., M.N. and M.A.
Excluded from this count is potential juror E.G., who was excused after the prosecutor discovered he had discussed marijuana usage on Facebook. Although the People briefly address the excusal of E.G., Bravo and Lara do not challenge his excusal on appeal. There was no consensus in the trial court regarding whether E.G. is African-American.
1. E.H.
E.H., an African-American man, was a member of the initial 18-member panel. He was a semi-retired employee with the Department of Defense in San Diego and an ordained minister for a church in Los Angeles. He was married with six adult children. He had one son who was murdered by Hispanic gang members, a stepdaughter who was "doing 18 years" for attempted murder after she shot a woman in the head she suspected of molesting her daughter, and a cousin who was "on trial as we speak" in Los Angeles County for shooting a woman in the head during an argument. E.H. stated he felt the system was unfair with respect to his stepdaughter because the situation involved the molestation of his step-granddaughter. When asked if he felt any of those situations would affect his ability to be a fair juror, he responded, "Not whatsoever." The prosecutor exercised his third peremptory challenge against E.H.
2. M.N.
After E.H. was excused, M.N., an African-American woman, and six other potential jurors were selected to join the 18-member panel and the court conducted its voir dire of them. M.N. was the single mother of one son and a certified nurse's assistant (CNA) employed at a facility where she cared for the elderly. She did not respond to any of the trial court's panel-wide voir dire questions.
The prosecutor then commenced his voir dire. After he wished the new panel members a good afternoon, he remarked, "And Miss [M.N.], you've been up there a little quiet. I'm going to get to you." After questioning other prospective jurors, the prosecutor had the following exchange with M.N.:
"[Prosecutor:] Miss [M.N.]
"[M.N.:] Yes.
"[Prosecutor:] You've been a little quiet, so I'm going to talk to you a little more. [¶] You said you're a CNA at Glenwood Gardens?
"[M.N.:] Yes.
"[Prosecutor:] What is a CNA?
"[M.N.:] Certified Nurse's Assistant. I take care of elderly people.
"[Prosecutor:] Okay. [¶] How long have you been doing that?
"[M.N.:] Ten years now.
"[Prosecutor:] Okay. [¶] Have you ever been in court?
"[M.N.:] No. This is my first time.
"[Prosecutor:] Okay. [¶] Have you ever been selected to maybe be in that part of the audience of jury selection, but not gotten here?
"[M.N.:] No. This is my first time.
"[Prosecutor:] Okay."
M.N. remained on the jury panel through three subsequent rounds of challenges, after which she was excused on a peremptory challenge.
3. M.A.
M.A., an African-American woman, joined the 18-member panel after the third round of challenges. M.A. was a retired school district secretary. She was married with three adult children. M.A. had prior jury experience, was the victim of a residential burglary and had some law enforcement connections, including a nephew who was a detective with the local sheriff's department, and relatives and friends who worked as correctional officers at "pretty much" all of the local facilities. Her late brother had a criminal record involving "[a]ll but murder" and her nephew was serving a sentence of 25 years to life for carjacking and kidnapping, and would serve four more years before becoming eligible for parole. M.A. stated she felt her brother was treated fairly by the system, but her nephew was not. M.A. explained that the victim in that case said her nephew was not involved, but because he had prior convictions and was said to be the mastermind, he received a sentence while the others were given minimal sentences or let go. M.A. visited her nephew in Folsom. Although she stated she could be fair in this case, M.A. stated she wished the jury in her nephew's case had known him. M.A. was excused on peremptory challenge at the same time as M.N.
4. Batson/Wheeler Motion
After the prosecutor used peremptory challenges to excuse M.A., Bravo and Lara objected on Batson/Wheeler grounds. The trial court deferred consideration of the motion until the jury selection process was complete. It thereafter found the motion was timely and that Bravo and Lara met their initial burden of showing a prima facie case of discrimination.
Juror number 3694335, an African-American woman employed by the California Department of Corrections and Rehabilitation as a registered nurse, remained on the jury.
a. Prosecutor's Explanation
The prosecutor then set forth his explanations on the record for excusing E.H., M.N. and M.A. The stated reasons for excusing E.H. were that one of E.H.'s sons was murdered in a gang-related incident, his stepdaughter was serving an 18-year sentence for attempted murder of an individual she suspected of molesting her daughter, and his female cousin was awaiting trial for shooting someone in the head. Because of these instances, especially the last in which E.H.'s cousin was awaiting trial, the prosecutor did not believe E.H. could be fair and impartial based on E.H.'s knowledge of "what's going on in that case."
With respect to M.N., the prosecutor stated, "[M.N.] was very soft-spoken, didn't speak much and as I indicated on my Post-it, which was written prior to the motion, I wrote 'not paying attention' or I wrote 'too complicated.' [¶] This morning I also spoke to the bailiff and told him prior to resuming jury selection, I was speaking about her and I said, 'I'm going to kick her because she doesn't understand what's going on' or I do not believe she will be able to follow what's going on. I looked at her body language several times and it did not appear that she was able to follow the questions or engage in a conversation as to that—what was going on. Due to the complexity of this case in which there are so many different victims, that there are two different defendants who are charged with separate crimes, I did not believe that she was the right juror for this case. I did not believe that she would be able to actively follow and engage in a meaningful discussion and for that reason I did kick [M.N.]."
As for M.A., the prosecutor stated he excused her because her nephew was serving a 25 years to life sentence for a carjacking in which she described him as not playing a major role, but for which he was blamed due to his past convictions. While M.A. did not specify the nature of her nephew's prior convictions, the prosecutor was concerned that M.A. would infer Bravo and Lara were "being roped in due to their past," specifically Lara who was confronted with the prospect of a 25 years to life sentence. The prosecutor was concerned M.A.'s statement that her nephew had no involvement in the crime but was convicted would play into her decision making in this trial.
b. Defense Response
In response, Bravo's counsel stated, while E.H. had a "checkered past with regard to relatives and siblings and whatnot," he had stated he could set that aside and be fair. As to M.N., Bravo's counsel stated he "didn't notice everything the prosecution did," did not see that she could not concentrate, and thought she was attentive. And as for M.A., Bravo's counsel stated the crimes she experienced were "old" and she said she could be fair.
Lara's counsel noted that E.H. was an ordained minister and that there was another white female juror still seated who was a worship leader. And he also noted that, as to M.A., any concern about her being sympathetic to Bravo and Lara's because of their past priors was baseless as evidence of those priors was inadmissible and the issue was to be decided in a bifurcated proceeding. Lara's counsel made no mention of M.N.'s challenge.
c. Trial Court Ruling
In evaluating the prosecutor's reasons for excusing prospective juror E.H., the trial court recalled that E.H. had two relatives who had either been shot in the head or who shot someone in the head, or other relatives "that were in that situation."
In evaluating the prosecutor's reason for excusing M.A., the trial court recalled that M.A. believed her nephew's conviction was wrongful, that she was aware of his parole hearings, and that she intended to speak on his behalf.
And in evaluating the prosecutor's reasons for excusing M.N., the trial court observed M.N. "was a little bit different. I do remember her being quite quiet. Her demeanor was a quiet demeanor, reserved. She was able to answer the questions that I posed to her, but there was a little difficulty with them. There was a little difficulty understanding her at some point, but nonetheless, I could understand [the prosecutor's] concern about her demeanor, her non verbal [cues] and whether or not the circumstances of the case and the complexity of this case would be difficult for her. So I am going to find that as to [E.H., M.N., and M.A.] that [the prosecutor's] explanation is genuine. I don't see it's a sham or pretext. He was bumping whites, Hispanics, Asians and black jurors both men and women.
In conclusion, the trial court stated it thought the prosecutor's "explanation is genuine and justification does not have a bias so I'm going to deny the motion at this time ...."
On appeal, Bravo and Lara focus mainly on the prosecutor's excusal of E.H., which they contend was based on his race and "spills over and casts doubt upon the race-neutral reasons for striking" M.N. and M.A. The People maintain the prosecutor's reasons for excusing all three jurors were legitimate and the trial court properly denied the Batson/Wheeler motion.
C. Applicable Law and Analysis
1. Prima Facie Case
At the first step of the Batson/Wheeler process, "the... movant must demonstrate a prima facie case by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose. The moving party satisfies this first step by producing '"evidence sufficient to permit the trial judge to draw an inference that discrimination has occurred."'" (Gutierrez, supra, 2 Cal.5th at p. 1158.)
As we have discussed, three of four African-American jurors selected from the 78-member venire panel were excused. Where there are few jurors in the group subject to the Batson/Wheeler challenge, the ability to draw an inference of discrimination from the excusal of some or even all is impacted. (Parker, supra, 2 Cal.5th at p. 1212.) As the California Supreme Court explained in a case involving the excusal of two out of three African-America jurors, "'"[T]he small absolute size of this sample makes drawing an inference of discrimination from this fact alone impossible. '[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.'"'" (Ibid., quoting People v. Bonilla, supra, 41 Cal.4th at p. 343.)
In this case, the trial court found Bravo and Lara satisfied the first step of the Batson/Wheeler inquiry by making a prima facie case of discrimination. As the People do not challenge that determination regarding E.H, M.N. and M.A. and the trial court is in a superior position to evaluate the totality of the circumstances, our focus on these potential jurors is confined to the third step and we express no opinion on what the outcome might have been had the motion been denied at the first stage. (Winbush, supra, 2 Cal.5th at p. 434.)
2. Prosecutor's Explanation
At the second step of the process, the burden shifts and the prosecution must provide a "'"'clear and reasonably specific'"'" explanation of his race-neutral (i.e. legitimate) reasons for exercising the challenges. (Winbush, supra, 2 Cal.5th at p. 434.) "'At this [second step] of the inquiry, the issue is the facial validity of the prosecutor's explanation. Unless a discriminatory intent is inherent in the prosecutor's explanation, the reason offered will be deemed race neutral.' [Citation]" (Purkett v. Elem (1995) 514 U.S. 765, 767-768.)
The standard imposed at the second step of the process is not exacting. It "'does not demand an explanation that is persuasive, or even plausible. "... [T]he issue is the facial validity of the prosecutor's explanation."'" (Gutierrez, supra, 2 Cal.5th at p. 1168.) "'[E]ven a "trivial reason" if genuine and neutral, will suffice.'" (Lenix, supra, 44 Cal.4th at p. 613.) As set forth above, the prosecutor voiced concern over E.H. and M.A.'s relatives currently in the criminal justice system and M.N.'s demeanor and her ability to understand the complexities of the case. Bravo and Lara do not claim this explanation lacked facial neutrality and, therefore, we proceed to the third step.
3. Trial Court's Evaluation
At the third and final step, the trial court must "evaluate[] the credibility of the prosecutor's neutral explanation." (Gutierrez, supra, 2 Cal.5th at p. 1168.) "In order to prevail, the movant must show it was '"more likely than not that the challenge was improperly motivated."' [Citation.] This portion of the Batson/Wheeler inquiry focuses on the subjective genuineness of the reason, not the objective reasonableness. [Citation.] At this third step, the credibility of the explanation becomes pertinent. To assess credibility, the court may consider, '"among other factors, the prosecutor's demeanor; ... how reasonable, or how improbable, the explanations are; and ... whether the proffered rationale has some basis in accepted trial strategy."' [Citations.] To satisfy herself that an explanation is genuine, the presiding judge must make 'a sincere and reasoned attempt' to evaluate the prosecutor's justification, with consideration of the circumstances of the case known at that time, her knowledge of trial techniques, and her observations of the prosecutor's examination of panelists and exercise of for-cause and peremptory challenges. [Citation.] Justifications that are 'implausible or fantastic ... may (and probably will) be found to be pretexts for purposeful discrimination.' [Citation.] We recognize that the trial court enjoys a relative advantage vis-à-vis reviewing courts, for it draws on its contemporaneous observations when assessing a prosecutor's credibility." (Ibid.)
"'We review a trial court's determination regarding the sufficiency of a prosecutor's justifications for exercising peremptory challenges "'with great restraint.'" [Citation.] 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.'" (Winbush, supra, 2 Cal.5th at p. 434.) "When the prosecutor's stated reasons are both inherently plausible and supported by the record, the trial court need not question the prosecutor or make detailed findings. But when the prosecutor's stated reasons are either unsupported by the record, inherently implausible, or both, more is required of the trial court than a global finding that the reasons appear sufficient." (People v. Silva (2001) 25 Cal.4th 345, 386 (Silva).)
D. Discussion
The question on these specific Batson/Wheeler challenges is whether there is adequate, substantial evidence in the record to support the trial court's finding that the prosecutor's justification for striking E.H., M.N. and M.A. were "'credible and whether, in light of all relevant circumstances, the defendant[s have] shown purposeful race discrimination.'" (Parker, supra, 2 Cal.5th at p. 1211.) Applying this analysis, we conclude that substantial evidence supports the race-neutral reasons given by the prosecutor for his excusal of prospective jurors E.H., M.A., and M.N.
Bravo and Lara focus primarily on the peremptory challenge to E.H., claiming the prosecutor's reasons for striking him "was a vacuous sham excuse belatedly contrived to avoid admitting group discrimination because [the prosecutor] accepted the jury with four people who were not Black who had experienced similar tragedies." Bravo and Lara argue that, because the reasons for striking E.H. cannot be accepted, it "casts shadow over the sincerity of the reasons" for striking M.A. and M.N. as well.
1. E.H. and M.A.
We first address E.H. and M.A. As noted earlier, E.H.'s son was murdered in 2001; his stepdaughter was in prison for attempted murder of the woman who had molested her daughter; and he had a cousin, awaiting trial for shooting someone in the head. M.A. had a brother charged with "[p]retty much everything" but murder, and who had a nephew serving a 25-year-to-life sentence on carjacking and kidnapping. M.A. did not think her nephew had been treated fairly because the victim said her nephew was not involved in the crime but, due to "a handful of priors," was found to be the mastermind and was now "up in Folsom."
At the outset, we recognize that in some cases, comparative juror analysis is a form of circumstantial evidence for courts to consider in evaluating a Batson/Wheeler claim. Moreover, such evidence "'must be considered in the trial court and even for the first time on appeal if relied upon by the defendant and the record is adequate to permit the urged comparisons.'" (Gutierrez, supra, 2 Cal.5th at p. 1174, quoting Lenix, supra, 44 Cal.4th at p. 622.) Where the issue is raised on appeal, the focus is limited "to the responses of stricken panelists and seated jurors that have been identified by [the] defendant in his claim of disparate treatment." (People v. Lomax (2010) 49 Cal.4th 530, 572, citing Lenix, supra, at p. 624; accord, Gutierrez, supra, at p. 1174.) In this case, the trial court did not conduct a comparative juror analysis. However, Bravo and Lara seek one on appeal with respect to E.H. and note the following jurors who they claim suffered similar "tragedies" and yet were kept as jurors.
Juror No. 1 (3901902) had a nephew who was a CHP officer and survived a gunshot wound to the chest inflicted during a high speed chase. Her niece was stabbed and killed by her husband while they were in a vehicle with their children. The husband was arrested and tried, and sentenced to "[l]ike seven years." Juror No. 1 had not attended any of the court proceedings, and she did not think either of those events would affect her ability to be fair.
Juror No. 4 (3725288) stated her father had been assaulted and robbed seven months previously. During the robbery, he had been stabbed in the back, but not severely injured. Nobody had yet been arrested for that crime. Juror No. 4 also stated her parents' cars were separately broken into, but no arrests made. She did not think these events would affect her being fair in this case.
Juror No. 7 (3302300) stated that, a year ago, she and her husband had tools taken from a locked house they were remodeling and, the following day, someone tried to carjack her vehicle while she was in a store and her husband and child were in the car. Her husband fought to prevent the car, with their son inside, from being taken. There was a police report, but no arrest. She did not think the would-be carjacker was either Bravo or Lara as he was a Caucasian, and thought she could give Bravo and Lara a "fair shake."
And Juror No. 10 (3358915) had been victimized earlier that year in his residence. The crime was reported, but there were no arrests made. Juror No. 10 stated his mother was murdered in Bakersfield in 2013, someone was arrested for that crime, and the case was pending trial. He had been to the arraignment of the alleged perpetrator. The trial court determined that none of the counsel in the current case was associated with prosecution of the man accused of murdering Juror No. 10's mother.
While it is true that Jurors No. 1, 4, 7, and 10 were the victims of various crimes, as was E.H., other factors set E.H. apart from those jurors. E.H. had a cousin who shot someone and was awaiting trial. The fact that a prospective juror has a relative pending trial on a criminal charge is a race-neutral reason for the prosecutor to excuse a juror. (See, e.g., People v. Avila (2006) 38 Cal.4th 491, 554 [prospective juror's experience with her brother's involvement in the criminal justice system was a legitimate reason for the prosecution to excuse her]; People v. Farnam (2002) 28 Cal.4th 107, 138 [a close relative's adversary contact with the criminal justice system is one ground upon which the prosecutor might reasonably challenge a prospective juror].)
In addition, E.H. believed his stepdaughter, who was convicted of attempted murder, had been unfairly treated by the criminal justice system because she shot the woman who had molested her daughter. "A prospective juror's distrust of the criminal justice system is a race-neutral basis for his excusal." (People v. Clark (2011) 52 Cal.4th 856, 907.)
The legitimate race-neutral reasons for the peremptory challenge to E.H. also apply to M.A. While M.A. did not claim to be the victim of a crime, she had family members who were convicted of crimes, and she did not think her nephew had been treated fairly.
In evaluating the prosecutor's reasons for excusing prospective jurors E.H. and M.A., the trial court recalled that E.H. had two relatives who had either been shot in the head or who shot someone in the head, or other relatives "that were in that situation." Also, that M.A. believed her nephew's conviction was wrongful, that she was aware of his parole hearings, and that she intended to speak on his behalf. The court then found that the prosecutor's explanation as to E.H. and M.A. was not a sham or pretext, was genuine and without bias. "Some neutral reasons for a challenge are sufficiently self-evident, if honestly held, such that they require little additional explication." (Gutierrez, supra, 2 Cal.5th at p. 1171.)
We find the trial court properly determined the prosecutor had valid, clearly plausible race-neutral reasons for excusing E.H. and M.A, and those reasons are amply supported by the record.
2. M.N.
We next address the peremptory challenge to M.N., who was excused, according to the prosecutor, because she was very soft-spoken, did not speak much, and was either "'not paying attention'" or the proceedings would be "'too complicated'" for her. Bravo and Lara argue the prosecutor's reasons for dismissing M.N. were pretextual because the prosecutor made no effort to gain any insight into M.N.'s ability to focus on the case. We agree with the People and find the prosecutor's stated reason - that she was "'not paying attention'" and the proceedings would be "'too complicated'" for her - were inherently plausible and supported by the record.
In the third step, "'[c]redibility [of the offered justification] 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.'" (Lenix, supra, 44 Cal.4th at p. 613, fn. omitted.) Implausible or fantastic justifications offered at the second stage may not be sufficiently credible to pass muster at stage three. (Purkett v. Elem, supra, 514 U.S. at p. 768.) "In assessing credibility, the court draws upon its contemporaneous observations of the voir dire." (Lenix, supra, at p. 613.) This assessment may also take into account "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." (Ibid.) Citing Johnson v. California (2005) 545 U.S. 162, 170, Justice Lui stated in his concurring opinion in Gutierrez: "The ultimate issue is 'whether it was more likely than not that the challenge was improperly motivated.'" (Gutierrez, supra, 2 Cal.5th at p. 1182 (conc. opn of Lui, J.).)
As stated by the prosecutor, he struck M.N. from the panel because he "looked at her body language several times and it did not appear that she was able to follow the questions or engage in a conversation as to that - what was going on. Due to the complexity of this case in which there are so many different victims, that there are two different defendants who are charged with separate crimes, I did not believe that she was the right juror for this case. I did not believe that she would be able to actively follow and engage in a meaningful discussion ...."
The trial court stated that M.N. had a "quiet demeanor," was "reserved," and understood the prosecutor's concern of M.N.'s "non verbal [cues] and whether or not the circumstances of the case and the complexity of this case would be difficult for her."
In addressing the strike of M.N., the trial court also stated, "She was able to answer the questions that I posed to her, but there was a little difficulty with them." The transcript does not reflect any difficulty M.N. had with answering questions, so the trial court (not the prosecutor) was incorrect with this observation. As directed by Gutierrez, when the trial court is partially mistaken in enumerating facts allegedly listed by the prosecutor in striking a juror, the proper step is to eliminate that mistaken reason from consideration as a basis for disqualification. (Gutierrez, supra, 2 Cal.5th at p. 1161.) Also, the incorrect observation by the trial court should not cast any doubt on the prosecutor's stated justification for striking M.N. Such doubt is appropriate only when one of the prosecutor's stated reasons is "demonstrably false" and the trial court finds that reason to be "legitimate." (People v. Long (2010) 189 Cal.App.4th 826, 845.)
Unlike the reasons for dismissing E.H. and M.A., the reasons for dismissing M.N. were based on the prosecutor's observations of her demeanor. As explained by our Supreme Court in People v. Reynoso (2003) 31 Cal.4th 903 (Reynoso):
"It is well settled that '[p]eremptory challenges based on counsel's personal observations are not improper.' (People v. Perez (1994) 29 Cal.App.4th 1313, 1330, fn. 8 ....) In Wheeler itself we observed, 'Indeed, even less tangible evidence of potential bias may bring forth a peremptory challenge: either party may feel a mistrust of a juror's objectivity on no more than the "sudden impressions and unaccountable prejudices we are apt to conceive upon the bare looks and gestures of another" (4 Blackstone, Commentaries 353)—upon entering the box the juror may have smiled at the defendant, for instance, or glared at him.' (Wheeler, supra, 22 Cal.3d at p. 275.) In People v. Fuentes (1991) 54 Cal.3d 707 ..., we explained that 'nothing in Wheeler disallows reliance on the prospective jurors' body language or manner of answering questions as a basis for rebutting a prima facie case' of exclusion for group bias. (Id. at p. 715.)" (Id. at p. 917.)
"When the trial court's assessment of a prospective juror's capacity to serve is based at least in part on the juror's tone, demeanor, or other elements that cannot be reflected in the written record, its ruling is owed deference by reviewing courts." (People v. Zaragoza (2016) 1 Cal.5th 21, 37.) "'The justification need not support a challenge for cause, and even a "trivial" reason, if genuine and neutral, will suffice.' [Citation.] A prospective juror may be excused based upon facial expressions, gestures, hunches, and even for arbitrary or idiosyncratic reasons ...[but] a legitimate reason is one that does not deny equal protection." (Lenix, supra, 44 Cal.4th at p. 613.) In People v. Johnson (1989) 47 Cal.3d 1194 (Johnson) (overruled on other grounds in Gutierrez, supra, 2 Cal.5th at p. 1174), our Supreme Court observed that, "Nowhere does Wheeler or Batson say that trial reasons are invalid. What is required are reasonably specific and neutral explanations that are related to the particular case being tried." (Id. at p. 1218.)
As further stated in Reynoso,
"Johnson reaffirmed that when ruling on a Wheeler motion, the trial court ' must make "a sincere and reasoned attempt to evaluate the prosecutor's explanation in light of the circumstances of the case as then known, his
knowledge of trial techniques, and his observations of the manner in which the prosecutor has examined members of the venire and has exercised challenges for cause or peremptorily ...." [Citation.]' (Johnson, supra, 47 Cal.3d at p. 1216.) But in fulfilling that obligation, 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. This is particularly true where the prosecutor's race-neutral reason for exercising a peremptory challenge is based on the prospective juror's demeanor, or similar intangible factors, while in the courtroom." (Reynoso, supra, 31 Cal.4th at p. 919.)
Here, the reasons given by the prosecutor for challenging M.N. - that she was soft spoken and not paying attention, presumably based on his observations of her body language, which led him to conclude the case was too complicated for her - appear reasonably specific and neutral. Although Bravo's counsel disagreed with these observations, the trial court specifically found otherwise: M.N. "was a little bit different. ... Her demeanor was a quiet demeanor, reserved. She was able to answer the questions that I posed to her, but there was a little difficulty with them.[] There was a little difficulty understanding her at some point, but nonetheless, I could understand [the prosecutor's] concern about her demeanor, her non verbal [cues] and whether or not the circumstances of the case and the complexity of this case would be difficult for her." The court then found that that the prosecutor's explanation or justification as to M.N. was not a sham or pretext, was genuine and without bias. We find the trial court properly determined the prosecutor had valid, clearly plausible race-neutral reasons for excusing M.N.
See footnote 9, ante.
The critical question becomes whether the record supports the prosecutor's reasoning. (Reynoso, supra, 31 Cal.4th at p. 920.) In Silva, the prosecutor peremptorily challenged Juror M., asserting he was reluctant to return a death verdict or that he was an "'extremely aggressive person.'" But the Supreme Court found the record of voir dire proceedings provided no support for the prosecutor's stated reasons for exercising a peremptory challenge against Juror M. The trial court had failed to probe the issue, and there was nothing in the trial court's remarks indicating it was aware of, or attached any significance to, the "obvious gap" between the prosecutor's claimed reasons for exercising the peremptory challenge against Juror M. and the facts disclosed by Juror M.'s voir dire responses. As such, the Silva court found "On this record, we are unable to conclude that the trial court met its obligations to make 'a sincere and reasoned attempt to evaluate the prosecutor's explanation.'" (Silva, supra, 25 Cal.4th at p. 385.)
It is important to note the absence of any evidence in the Silva record, including demeanor or body language, as the reason behind the prosecutor's assertion that Juror M. was reluctant to return a death verdict or was an "'extremely aggressive person.'" As further explained in Silva:
"Although we generally 'accord great deference to the trial court's ruling that a particular reason is genuine,' we do so only when the trial court has made a sincere and reasoned attempt to evaluate each stated reason as applied to each challenged juror. [Citations.] When the prosecutor's stated reasons are both inherently plausible and supported by the record, the trial court need not question the prosecutor or make detailed findings. But when the prosecutor's states reasons are either unsupported by the record, inherently implausible, or both, more is required of the trial court than a global finding that the reasons appear sufficient." (Silva, supra, 25 Cal.4th at pp. 385-386.)
Here, there is sufficient evidence in the record—the prosecutor's observations (confirmed by the trial court) based on M.N.'s demeanor and body language. The trial court expressly accepted the prosecutor's race-neutral reasons, based on her body language, for the peremptory challenge to M.N., stating it did remember her as being quiet, and "a little different," and that it understood the prosecutor's concern about her demeanor, in light of the complexity of the case. Since the trial court was in the best position to observe the M.N.'s demeanor and the manner in which the prosecutor exercised his peremptory challenges, the trial court's implied finding, that the prosecutor's reasons for excusing M.N. on the demeanor-based reasons, was sincere and genuine "is entitled to 'great deference' on appeal." (Reynoso, supra, 31 Cal.4th at p. 926.) Nor have we found anything in the record to directly contradict the trial court's express finding to that effect, in contrast to Silva.
To the contrary. M.N. was the only juror singled-out by any party or the trial court as being "quiet." This observation was initially made by the prosecutor, and confirmed by the trial court. Under the circumstances, the fact that Bravo's counsel did not "notice everything the prosecution did" in his observation of M.N., does not call into question the credibility of the prosecutor's stated reasons. (People v. Jordan (2006) 146 Cal.App.4th 232, 255.) We note also that when asked to respond to the prosecutor's reasons for striking E.H., M.N. and M.A., Lara's counsel argued against the striking of E.H. and M.A., but did not mention M.N. at all.
In addition, M.N. remained on the jury panel through three subsequent rounds of challenges, after which she was excused. Although not a conclusive factor, "the passing of certain jurors may be an indication of the prosecutor's good faith in exercising his peremptories, and may be an appropriate factor for the trial judge to consider in ruling on a Wheeler objection ...." (People v. Snow (1987) 44 Cal.3d 216, 225.) Moreover, the trial court was in the best position to observe the prosecutor's demeanor, and the manner in which he exercised his peremptory challenges, in assessing the prosecutor's credibility. (People v. Stanley (2006) 39 Cal.4th 913, 939.)
Bravo and Lara argued that the prosecutor's proffered explanations for exercising a peremptory challenge against M.N. were pretexts designed to disguise racial prejudice. The trial court found to the contrary. That finding is reasonable and supported by substantial evidence.
But "'[w]hen the prosecutor's stated reasons are either unsupported by the record, inherently implausible, or both, more is required of the trial court than a global finding that the reasons appear sufficient.'" (Gutierrez, supra, 2 Cal.5th at p. 1171.)
Here, the prosecutor's reasons for striking E.H. and M.A. were inherently plausible and clear: he was concerned about their ability to be fair and impartial because their relatives had been convicted of serious crimes and were in prison. His reasons for striking M.N. were also clear and inherently plausible: she was soft spoken and not paying attention, presumably based on his observations of her body language, which led him to conclude the case was too complicated for her. The critical issue is whether the record supports this reasoning and does not contradict it. (Silva, supra, 25 Cal.4th at p. 386.) Clearly it does: the prosecutor's observations and conclusions, specifically confirmed by the trial court, based on M.N.'s demeanor and body language. Nothing in the record contradicts the justification given by the prosecutor. Also, nothing in the record supports a challenge to the prosecutor's demeanor, credibility, or reasoning. The prosecutor's demeanor-based reasons are therefore entitled to deference. Although Bravo's counsel argued that he did not agree with the prosecutor's reasons for dismissing M.N., the trial judge specifically rejected that assertion. Finally, nothing in the record indicates that the trial court did not make a sincere and reasonable evaluation of the prosecutor's stated justification for striking M.N.
The trial judge obviously heard the prosecutor's reasons and justification for striking M.N. He accepted the prosecutor's observations of M.N., not Bravo's counsel's, then reconfirmed the prosecutor's reasons, and specifically found the reason given was genuine and non-discriminatory. There was no global finding of neutrality as in Gutierrez. He was clearly aware of the prosecutor's concern over M.N.'s ability to serve as a juror to such an extent that follow-up questioning of the prosecutor's reasons and justification for striking M.N. was unnecessary.
Trial courts are not necessarily required to "question the prosecutor or make detailed findings" (Silva, supra, 25 Cal.4th at p. 386), unless "the prosecutor's stated reasons are either unsupported by the record, inherently implausible, or both." (Ibid.) In such a case, "more is required of the trial court than a global finding that the reasons appear sufficient." (Ibid.) Here, the reasons before the trial court for each potential jurors' dismissal was supported by the record and was inherently plausible. In addition, the trial court specifically stated: "So I am going to find that as to [E.H., M.N., and M.A.] that [the prosecutor's] explanation is genuine. I don't see it's a sham or pretext." The prosecutor's "explanation is genuine and justification does not have a bias ...." Based on the clear justification for each of the challenged jurors' dismissals, the trial court's findings are sufficient.
Compare the similar findings in Lenix, supra, 44 Cal.4th at page 611, which were found sufficient: "'Based on the representations that I have from [the prosecutor] ... I do not find those challenges to be motivated because of the fact that any of the jurors excused were members of a minority group but rather for other reasons not motivated by any kind of ethnicity or membership in any particular minority group, so I'm going to deny the Wheeler motion.'"
Although the dissent believes that further inquiry by the trial court was required under Gutierrez to demonstrate compliance with its obligations under Wheeler, there is no indication in the record that the court did not make a sincere and reasoned determination regarding the genuineness of the prosecutor's reasons. We conclude that Gutierrez does not compel anything beyond what is included in the present record.
As stated in Lenix, "It should be discernable from the record that (1) the trial court considered the prosecutor's reasons for the peremptory challenges at issue and found them to be race neutral; (2) those reasons were consistent with the court's observations of what occurred, in terms of the panelist's statements as well as any pertinent nonverbal behavior; and (3) the court made a credibility finding that the prosecutor was truthful in giving race-neutral reasons for the peremptory challenges." (Lenix, supra, 44 Cal.4th at p. 625.) "[T]he court must be satisfied that the specifics offered by the prosecutor are consistent with the answers it heard and the overall behavior of the panelist. The record must reflect the trial court's determination on this point [citation], which may be encompassed within the court's general conclusion that it considered the reasons proffered by the prosecution and found then credible." (Id. at pp. 625-626.)
We find the trial court adequately considered the prosecutor's reasons for challenging each of these jurors. Regarding M.N., the reasons were consistent with the court's observations of what occurred and the court made a credibility finding (by disagreeing with defense counsel's observations) that the prosecutor was truthful in giving a race-neutral reason for the challenge. We conclude that the record sufficiently supports the trial court's denial of the Batson/Wheeler motion with respect to each of the challenged prospective jurors and, in this instance, no more was required of the trial court. (Gutierrez, supra, 2 Cal.5th at pp. 1154, 1171-1172.) II. SUBSTANTIAL EVIDENCE CLAIMS
Bravo contends there is insufficient evidence to sustain his conviction for count 6, burglarizing Tricia Heston's vehicle on July 9, 2014. Lara contends there is insufficient evidence to sustain his conviction for count 19, driving on a suspended license. We reject both claims.
A. Standard of Review
To assess the evidence's sufficiency, we review the whole record to determine whether any rational trier of fact could have found the essential elements of the crime ... beyond a reasonable doubt. (People v. Maury (2003) 30 Cal.4th 342, 403.) "The record must disclose substantial evidence to support the verdict—i.e., evidence that is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Zamudio (2008) 43 Cal.4th 327, 357.) "In applying this test, we review the evidence in the light most favorable to the prosecution and presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence." (Ibid.) "'[I]t is the jury, not the appellate court which must be convinced of the defendant's guilt ....'" (People v. Nguyen (2015) 61 Cal.4th 1015, 1055-1056.) "A reversal for insufficient evidence 'is unwarranted unless it appears "that upon no hypothesis whatever is there sufficient substantial evidence to support"' the jury's verdict." (Zamudio, supra, at p. 357.) However, "speculation, supposition and suspicion are patently insufficient to support an inference of fact." (People v. Franklin (2016) 248 Cal.App.4th 938, 951.)
B. Bravo's Burglary Conviction (Count 6)
In count 6, Bravo was charged with second degree burglary. The evidence at trial was that, on the morning of July 9, 2014, Tricia Heston's vehicle was broken into while she was at the gym. Her purse, which contained her identification, credit cards and husband's iPhone, was stolen.
A few hours later, Bravo entered a Bank of America and tried to cash a check made out to him from the account of Donna Robbe. Donna Robbe's account had already been flagged due to the theft of her checks during an auto burglary four days earlier. After confirming with Donna Robbe that she did not write the check in question, bank staff called police and successfully delayed Bravo and Lara until they arrived. When police searched Lara, they found a set of car keys belonging to the stolen 2002 Ford Explorer, which was found in the bank parking lot. On top of the center console of the Explorer, police found items belonging to Julie Estes, Donna Robbe, and Tricia Heston. With those items was Lara's driver's license.
Second degree burglary is the entry into a locked vehicle with the intent to commit theft or any felony. (§§ 459, 460, subd. (b).) In this case, there was no security camera footage, eyewitness testimony or fingerprint evidence linking Bravo to the burglary of Tricia Heston's vehicle. Instead, he was linked to the crime through his presence in the bank with Lara and the subsequent discovery of Tricia Heston's property in the Explorer parked outside.
It has long been the rule that "evidence of possession of property taken in a burglary, unless augmented by other evidence corroborating the defendant's involvement, is insufficient to support a burglary conviction [citations] .... [¶] [However,] [w]hen ... a defendant is found in possession of property stolen in a burglary shortly after the burglary occurred, the corroborating evidence of the defendant's acts, conduct, or declarations tending to show his guilt need only be slight to sustain the burglary convictions." (People v. Mendoza (2000) 24 Cal.4th 130, 175-176, citing People v. McFarland (1962) 58 Cal.2d 748, 754; see People v. Rogers (2013) 57 Cal.4th 296, 335.)
In accordance with this rule, the trial court instructed the jury pursuant to CALCRIM No. 376 as follows: "If you conclude that the defendant knew that he possessed property and you conclude that property had, in fact, been recently stolen, you may not convict the defendant of robbery and/or burglary based on those facts alone. [¶] However, if you also find the supporting evidence tends to prove his guilt, then you may conclude that the evidence is sufficient to prove he committed robbery and/or burglary. [¶] ... [¶] The supporting evidence need only be slight and need not be enough by itself to prove guilt."
Bravo maintains there is no evidence linking him to the burglary of Tricia Heston's vehicle except for his association with Lara and the evidence found in the 2002 Ford Explorer linking Lara to the burglary, which, he contends, is insufficient to satisfy due process.
The People point to the timing of Bravo's trip to the bank, within hours of the burglary of Tricia Heston's vehicle, and the presence of her property in the getaway car. They also point to other evidence found in the vehicle: evidence of the robbery of Julie Estes, in which Bravo did participate, as well as the presence of other stolen items. The People contend, "The fact that Bravo committed a robbery with Lara only a few days earlier also supported the jury's determination that he and Lara burglarized Heston's car. The prosecutor properly asserted during closing argument that the jurors could use the 'totality of the circumstances,' including the evidence of other crimes, to find that Bravo and Lara were engaged in a joint scheme to profit from stealing others' property. [Citation.] This conclusion was also reinforced by Bravo's attempt to cash one of [Robbe's] stolen checks that had been fraudulently made out to him hours after Heston's car was burglarized. Although the stolen check did not belong to Heston, her stolen property was found [in the Ford Explorer] with other stolen [Robbe] checks from the same account as the one Bravo was trying to cash. [¶] Together, these facts and circumstances provided substantial evidence supporting Bravo's conviction for second degree burglary of the Heston vehicle charged in count 6."
We agree with the People. The jury in this case found that Bravo, along with Lara, was in possession of Tricia Heston's recently stolen property. While there was no direct evidence Bravo arrived at the bank in the Ford Explorer stolen by Lara, there was sufficient circumstantial evidence from which the jury could have reasonably inferred that the two arrived together in the vehicle. Lara, who stole the vehicle several days prior and had the key in his pocket, entered the bank only minutes after Bravo and told the assistant manager of the bank he was waiting for Bravo. While in the bank, Lara and Bravo also made eye contact a few times and Lara nodded at Bravo, which the assistant manager interpreted as indicating they should leave. The stolen property belonging to Donna Robbe, Julie Estep, and Tricia Heston was then located on top of the Explorer's center console between the two front seats.
Prior to sentencing, this count, count 11, was dismissed pursuant to section 1385.
While possession of stolen property alone is not sufficient to sustain the burglary conviction, such possession, coupled with corroborating evidence of acts, conduct or declarations of the accused tending to show his guilt, will sustain a conviction of burglary. (People v. Citrino (1956) 46 Cal.2d 284, 288.) When possession is shown, the corroborating evidence may be slight. (Ibid.; People v. Thompson (1953) 120 Cal.App.2d 359, 363.) Here, under the totality of the evidence before the jury, we find the evidence sufficient to sustain Bravo's count 6 second degree burglary conviction, and reject his claim to the contrary.
C. Lara's Conviction for Driving on a Suspended License (Count 19)
Lara was convicted in count 19 of misdemeanor driving on a suspended license, which was based on evidence his driver's license was suspended at the time he drove the Explorer away from the car lot on July 5, 2014. (Veh. Code, § 14601.1.) Lara argues there is insufficient evidence that, on that date, he knew his license was suspended and he points out that although the trial court instructed the jury on the knowledge element, the element was overlooked by the prosecutor during argument.
The relevant Vehicle Code section under which Lara was convicted provides: "(a) No person shall drive a motor vehicle when his or her driving privilege is suspended or revoked for any reason other than those listed in [Vehicle Code] Section 14601, 14601.2, or 14601.5, if the person so driving has knowledge of the suspension or revocation. Knowledge shall be conclusively presumed if mailed notice has been given by the department to the person pursuant to Section 13106. The presumption established by this subdivision is a presumption affecting the burden of proof." (Veh. Code, § 14601.1, subd. (a).)
Section 13106 of the Vehicle Code in turn provides, in relevant part: "It shall be a rebuttable presumption, affecting the burden of proof, that a person has knowledge of the suspension or revocation if notice has been sent by first-class mail by the department pursuant to this section to the most recent address reported to the department pursuant to [Vehicle Code] Section 12800 or 14600, or any more recent address on file if reported by the person, a court, or a law enforcement agency, and the notice has not been returned to the department as undeliverable or unclaimed. It is the responsibility of every holder of a driver's license to report changes of address to the department pursuant to [Vehicle Code] Section 14600." (Veh. Code, § 13106, subd. (a).)
Pursuant to CALCRIM No. 2220, the trial court instructed the jury,
"Defendant is charged in Count 19 with driving while his driving privilege was suspended or revoked, in violation of [Vehicle] Code Section 14601.1.
"To prove that the defendant is guilty of this crime, the People must prove that, one, the defendant drove a motor vehicle while his driving privilege was suspended or revoked, and two, when the defendant drove, he knew that his driving privilege was suspended or revoked.
"If the People prove that, one, the California Department of Motor Vehicles mailed a notice to the defendant telling him that his driving privilege was suspended or revoked; two, the notice was sent to the most recent address reported to the department or anymore [sic] recent address as reported by the person[, a] Court or [a] law enforcement agency; and three, that notice was not returned to the department as undelivered or unclaimed, then you may, but are not required to, conclude that the defendant knew that his driving privilege was suspended or revoked.
"If the People prove beyond a reasonable doubt that the Court informed the defendant that his driving privilege was suspended or revoked, you may, but are not required to, conclude that the defendant knew his driving privilege was suspended or revoked."
The evidence supporting this offense consistent of the testimony of Sam Sands, the owner of Oasis Auto Sales, who testified Lara came to the lot July 5, 2014, to purchase the 2002 Ford Explorer. He left with the vehicle to pick up the down payment and return to complete paperwork, but never returned.
The People also presented a certified document of Lara's DMV record, showing his license was suspended effective May 1, 2014, and that the order suspending his license was mailed April 1, 2014. While the DMV record lists two addresses for Lara, there is no indication (as there had been earlier in September of 2014, when Lara's license was suspended) that the notice was returned unclaimed. In addition, the document also notes, "VERBAL NOTICE—COURT, LAW ENFORCEMENT AGENCY, OR DMV," which likely meant Lara was informed of his suspension personally as well. In any event, there was no objection to the document by Lara's trial counsel, who in closing argument to the jury, conceded the charge, stating, "I told you in my opening Mr. Lara isn't entirely not guilty.... Somebody snickered when I said that. And it's true. Driving while suspended. Good God. You've got a certified document from the DMV that says his license was suspended, and you've got a witness that says I saw him drive a car off my car lot. Wow. That might be one you could approach first as a group of people and say, well, that one's done."
We find sufficient evidence to sustain Lara's conviction for driving with a suspended license, and reject his claim to the contrary. III. INSTRUCTIONAL ERROR ON COUNT 8
Bravo next contends the trial court committed prejudicial error by not instructing the jury as to all the elements of the count 8 felony offense of receiving stolen property. The elements of that offense are that the defendant: (1) received stolen property; (2) knew the property was stolen; and (3) knew of the presence of the property. (§ 496, subd. (a).) For that offense to be a felony, the value of the stolen property must exceed $950 on the date of the offense. (Ibid.)
Background
In total, the consolidated information charged nine counts of receiving stolen property, consisting of four counts of misdemeanor receiving stolen property and five counts of felony receiving stolen property, with a value exceeding $950.
Bravo was charged in counts 10, 11, and 12 of misdemeanor receiving stolen property. Of those, convictions on counts 10 and 11 were dismissed following guilty verdicts, and he was acquitted of count 12. Bravo was also charged in counts 8 and 13 with felony receiving stolen property. Of those, Bravo was acquitted of count 13.
Lara was charged and convicted in counts 2, 10, 11, and 12 with misdemeanor receipt of stolen property. Of those, convictions on counts 2, 10, and 11 were dismissed. He was also charged and convicted in counts 8, 13, 14, 23, and 27 with felony receipt of stolen property. Of those, convictions on counts 8, 13, and 23 were dismissed.
On Count 8, the jury heard evidence that during the evening of July 5, 2014, a Toyota Highlander belonging to Adrian and Donna Robbe was burglarized while it was parked and locked at the Starplex Cinemas in Bakersfield. Property stolen included Donna Robbe's engagement ring valued at $2,550, and personal checks for each of their bank accounts, along with credit cards. On July 9, 2014, Bravo entered the Bank of America, accompanied by Lara, and attempted to cash a stolen check from the Robbes' account made out to Bravo in the amount of $220. A stolen Ford Explorer in the bank parking lot was found to contain more blank checks from the same account as the one Bravo tried to cash, as well as several credit cards belonging to the Robbes. Monique Garza testified that Lara presented her with Donna Robbe's stolen diamond ring.
Applicable Law and Analysis
At trial, the court instructed the jury with the following version of CALCRIM No. 1750:
"Defendant is charged in Counts 2, 8, 10, 11, 12, 13, 14, 23, and 27 with receiving stolen property, a violation of Penal Code Section 496. [¶] To prove the defendant is guilty of this crime, the People must prove that, one, the defendant received, concealed, or withheld from its owner or aided in concealing or withholding from its owner property that had been stolen, and two, when the defendant received, concealed, withheld or aided in concealing or withholding the property, he knew that the property had been stolen, and three, the defendant actually knew of the presence of the property. [¶] ... [¶] To receive property means to take possession and control of it. Mere presence near or access to the property is not enough. Two or more people may possess the property at the same time. A person does not actually have to hold or touch something to possess it. It is enough if this person has control over it or the right to control it, either personally or through another person."However, the court's instruction did not include the language necessary for a conviction of the felony offense of receiving stolen property: "If you find the defendant guilty of receiving stolen property, you must then decide whether the value of the property received was more than $950. If you have a reasonable doubt whether the property was received has a value of more than $950, you must find this allegation has not been proved." (CALCRIM No. 1750.) Despite this omission, the jury convicted Bravo of felony receiving stolen property.
A trial court must adequately instruct the jury on all elements of the law relevant to the case. (People v. Miller (1999) 69 Cal.App.4th 190, 207.) Here, it is undisputed that the trial court did not instruct the jury on all the elements of the felony offense of receiving stolen property. As such, we must analyze if this error was harmless. The failure to instruct on an element of an offense is harmless if the prosecution proves beyond a reasonable doubt that no substantial evidence supports a contrary finding on the omitted element. (People v. Mil (2012) 53 Cal.4th 400 (Mil).) In Mil, the California Supreme Court stated that in the context of such instructional error,
"Neder [v. United States (1999) 527 U.S. 1 (Neder)] instructs us to 'conduct a thorough examination of the record. If, at the end of that examination, the court cannot conclude beyond a reasonable doubt that the jury verdict would have been the same absent the error—for example, where the defendant contested the omitted element and raised evidence sufficient to support a contrary finding—it should not find the error harmless.' [Citation.] On the other hand, instructional error is harmless 'where a reviewing court concludes beyond a reasonable doubt that the omitted element was uncontested and supported by overwhelming evidence.' [Citations.] Our task, then, is to determine 'whether the record contains evidence that could rationally lead to a contrary finding with respect to the omitted element.'" (Id. at p. 417.)Our Supreme Court further clarified the appropriate harmless error analysis as requiring us to answer the question: "'Is it clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error?' [Citation.]" (People v. Gonzalez (2012) 54 Cal.4th 643, 663.)
Where the omitted element of the offense was subject to significant dispute at trial, the harmless error analysis commonly focuses on examining "whether 'the factual question posed by the omitted instruction necessarily was resolved adversely to the defendant under other, properly given instructions.' [Citation.] A reviewing court considers 'the specific language challenged, the instructions as a whole[,] the jury's findings' [citation], and counsel's closing arguments to determine whether the instructional error 'would have misled a reasonable jury ....' [Citation.]" (People v. Bell (2009) 179 Cal.App.4th 428, 439.)
However, in other cases, such as Neder, supra, 527 U.S. 1, where there is no indication that other instructions given to the jury might support an implied finding on the omitted element, and no finding can be inferred from the jury's verdict, the harmless error analysis focuses instead on whether, considering the trial record as a whole, there appears to be any reasonable possibility that the jury might have found in defendant's favor on the omitted element if asked to address it. Thus, in Neder, the United States Supreme Court considered whether the court's failure to instruct the jury that it must find the false statements made by defendant on his tax return to be "material" for purposes of the charged crime of filing false income taxes, amounted to harmless error. (Id. at p. 16.)
We have reviewed the trial evidence to determine "whether the record contains evidence that could rationally lead to a contrary finding with respect to the omitted element" that the value of stolen goods exceeded $950 (Neder, supra, 527 U.S. at p. 19; Mil, supra, 53 Cal.4th at p. 417) and conclude no rational juror could find that the value of the stolen property received by Bravo was less than $950.
At trial, Donna Robbe testified that the items taken from her vehicle included "[a]ll" of her and her daughter's checks and their credit cards, four or five "Kipling bags" valued at $100 apiece, as well as her engagement ring. Her husband, Adrian Robbe, testified the ring, made of 14-carat gold, had three diamonds - the center diamond was a .50 carat and the diamond on each side .25 carat - for a total of one carat and an appraised value of $2,550.
The owner of the stolen property may testify as to the value of that property, regardless whether the owner is an expert in the valuation of that particular property. (See People v. Henderson (1965) 238 Cal.App.2d 566 [trier of fact to determine weight to owner's testimony as to value].) In addition, a juror may rely on his or her common knowledge regarding the value of consumer goods. (People v. Ortiz (2012) 208 Cal.App.4th 1354, 1366 [explaining that although the prosecution offered no evidence regarding the current value of a BMW, the jurors could rely on their common knowledge that late model BMWs have a substantial market value].)
In closing argument, the prosecutor argued Bravo was guilty of felony receiving stolen property, citing "multiple evidence of both defendants being in possession of the checks," and Lara being in the possession of the ring, itself valued at $2550. "All of this in conjunction shows that ... they were in possession of the stolen property, just various forms," and the value was "over $950."
Bravo's counsel conceded guilt on the charge of commercial burglary of Bank of America, count 7. But as to count 8, counsel argued that, while Bravo had with him at the bank a stolen check from the Robbe's "in the area of [$]200," it certainly was not in excess of $950, and, should the jury find Bravo guilty of that count, it should be for misdemeanor, not felony, receiving stolen property. Counsel continued, stating:
"[T]he problem with Count 8 is it incorporates other property of [the] Robbe[s], all of which purportedly exceeds [$]950. But I dispute that it's been proven than my client was in possession of that property."Counsel, in essence, was not arguing the value of the Robbe's items, but instead whether the evidence was insufficient to prove that Bravo possessed all of the property or only the one item, the $200 check he attempted to cash at the Bank of America.
While the trial court neglected to instruct the jurors that the value of the property received had to be over $950, the jury resolved this issue in favor of the prosecution, as evidenced by the verdict form for count 8, which contained this missing element and required the jury find Bravo possessed stolen property over $950 in value. The verdict form for count 8 reads:
"We, the jury, [empaneled] to try the above entitled case, find the defendant, ADALBERTO HERNANDEZ BRAVO, guilty of a felony, to wit: Receiving Known Stolen Property with a Value Over Nine Hundred and Fifty Dollars, in violation of Section 496(a) of the Penal Code, as charged in the eighth count of the Information."
For the above reasons, we conclude that the trial court's error in omitting an instruction regarding an element of the felony offense of receiving stolen property was harmless, and we reject Bravo's claim to the contrary. IV. INSTRUCTIONAL ERROR ON SPECIFIC INTENT CRIMES
Lara contends prejudicial instructional error occurred when the trial court generally instructed the jurors that counts 2, 8, 14, 23, and 27 (possession of stolen property); count 15 (possession of a controlled substance); count 19 (driving on a suspended license); count 22 (possession of narcotics paraphernalia) and counts 21 and 25 (providing false identification to a peace officer) were general intent crimes, thus removing the requirement that the jury find the knowledge element for the offenses. The People contend any such error was harmless where, as here, the court also provided precise instructions on the elements of each count, which instructed the jurors that they had to find each defendant committed the act charged with a particular mental state, which was explained in each instruction. We agree with the People.
Background
The instruction of which Lara complains, CALCRIM No. 252, as given stated, in pertinent part:
"The crimes or allegations charged in Counts 1 through 15 and 19 through 29 require the proof of the union or joint operation of act and wrongful intent. [¶] The following crimes and allegations ... require general criminal intents: Counts 2, 8, 14, 15, 19, 21, 22, 23, 25, and 27. [¶] For you to find a person guilty of these crimes or to find the allegations true, the person must not [only] commit the prohibited act or failed to do the required act, but must do so with wrongful intent. [¶] A person acts with wrongful intent when he or she intentionally does a prohibited act or fails to do a required act. However, it is not required that he or she intent to break the
law. [¶] The act required is explained in the instruction for that crime or allegation."The instruction also listed counts 1, 3, 4, 5, 6, 7, 9-13, 20, 24, 26, 28, and 29 as requiring "a specific intent or mental state."
We note that in listing the various crimes as requiring general or specific intent, the instruction listed some of the counts of receiving stolen property (counts 2, 8, 14, 23 and 27) as requiring general intent, while other counts of receiving stolen property (counts 10, 11, 12, and 13) as requiring specific intent.
Applicable Law and Analysis
The instruction given, CALCRIM No. 252, is appropriate in cases involving both offenses requiring specific intent or mental state and offenses that do not, rather than giving these instructions separately in CALCRIM No. 250 (General Intent) and CALCRIM No. 251 (Specific Intent or Mental State). Assuming the counts of which Lara complains required more than general intent, it was error for the trial court to instruct as it did.
However, even assuming error, we find no reversal is required. "When the jury is 'misinstructed on an element of the offense ... reversal ... is required unless we are able to conclude that the error was harmless beyond a reasonable doubt.' [Citations.]" (People v. Wilkins (2013) 56 Cal.4th 333, 348.)
Having reviewed the entire record, we conclude beyond a reasonable doubt that the trial court's instructional error was harmless because "the jury verdict would have been the same absent the error." (See Neder, supra, 527 U.S. at p. 19.) To begin with, the record reflects that the error was cured by other instructions to the jury. "'"[T]he absence of an essential element in one instruction may be supplied by another or cured in light of the instructions as a whole."' [Citation.]" (People v. Delgado (2017) 2 Cal.5th 544, 574.)
Prior to giving the CALCRIM No. 252 instruction, the trial court instructed that:
"The People must prove not only that the defendant did the acts charged but also that he acted with a particular intent or mental state. The instruction for each crime and allegation explains the intent or mental state required."Importantly, the trial court then, in turn, instructed that each of the offenses had a specific knowledge element.
As to the offenses of receiving stolen property, which the trial court identified as counts 2, 8, 10, 11, 12, 13, 14, 23, and 27, the trial court instructed with CALCRIM No. 1750, in pertinent part:
See footnote 13. Here, the trial court listed all counts of receiving stolen property.
"To prove the defendant is guilty of this crime, the People must prove that, one, the defendant received, concealed, or withheld from its owner or aided in concealing or withholding from its owner property that had been stolen, and two, when the defendant received, concealed, withheld or aided in concealing or withholding the property, he knew that the property had been stolen, and three, the defendant actually knew of the presence of the property."
As to the possession of methamphetamine possession, count 15, the trial court instructed with CALCRIM No. 2304, in pertinent part:
"To prove the defendant is guilty of this crime, the People must prove that, one, the defendant unlawfully possessed a controlled substance; two, the defendant knew of its presence; three, the defendant knew of the substance's nature or character as a controlled substance; four, the controlled substance was methamphetamine; and five, the controlled substance was in a usable amount."
The trial court instructed the jury on count 19, driving with a suspended license, by giving CALCRIM No. 2220, in pertinent part, as follows:
"To prove the defendant is guilty of this crime, the People must prove that, one, the defendant drove a motor vehicle while his driving privilege was suspended or revoked, and two, when the defendant drove, he knew that his driving privilege was suspended or revoked."
With respect to the possession of drug paraphernalia offense, count 22, the trial court instructed with CALCRIM No. 2410, in pertinent part:
"To prove that the defendant is guilty of this crime, the People must prove that the defendant unlawfully possessed an object used for unlawfully injecting or smoking a controlled substance; two, the defendant knew of the object's presence; and three, the defendant knew it to be an object used for unlawfully injecting or smoking a controlled substance."
And with respect to false representation of identify to a peace officer, counts 21 and 25, the trial court instructed, in pertinent part:
"To prove that the defendant is guilty of this crime, the People must prove that, one, the defendant falsely represented or identified himself as another person or a fictitious person to a peace officer; two, when the defendant falsely represented himself, he was ... being lawfully detained or arrested; and three, the defendant falsely represented himself to evade the proper identification of himself."
Considering the jury instructions as a whole, we determine there is no reasonable likelihood that the jury misunderstood the instructions to allow them to convict Lara absent a finding of the requisite knowledge for a conviction of each offense, and the trial court's error in generally instructing that counts 2, 8, 14, 15, 19, 21, 22, 23, 25, and 27 were general intent crimes was harmless beyond a reasonable doubt. V. INSTRUCTIONAL ERROR ON SECTION 148.9
We also reiterate that counts 2, 8, and 23 were dismissed as to Lara.
Lara next contends the trial court committed reversible error when it instructed on providing false identification to a peace officer in violation of section 148.9 (counts 21 and 25). Specifically, Lara argues section 148.9 has, as one of its elements, the requirement that the prosecution prove the officer was engaged in "a lawful detention or arrest of the person," but that the instruction given omits this element.
Applicable Law and Analysis
Section 148.9, subdivision (a) provides: "Any person who falsely represents or identifies himself or herself as another person or as a fictitious person to any peace officer listed in Section 830.1 or 830.2, or subdivision (a) of Section 830.33, upon a lawful detention or arrest of the person, either to evade the process of the court, or to evade the proper identification of the person by the investigating officer is guilty of a misdemeanor." It is violated whenever any person falsely identifies himself in a way that would mislead the officer and evade proper identification, including by giving a false name or date of birth. (In re Ivan J. (2001) 88 Cal.App.4th 27, 30-31.)
To convict a person under this statute, "the prosecution need only establish the act of impersonation before a peace officer upon a lawful detention or arrest, for the purpose of evading the process of the court or proper identification." (People v. Robertson (1990) 223 Cal.App.3d 1277, 1281, abrogated on other grounds in People v. Rathert (2000) 24 Cal.4th 200, 206-207.)
The trial court's instruction on this offense was based largely on the statutory language:
"The defendant is charged in counts 21 and 25 with false representation of identity to a peace officer, in violation of section 148.9.
"To prove that the defendant is guilty of this crime, the People must prove that, one the defendant falsely represented or identified himself as another person or a fictitious person to a peace officer; two, when the defendant falsely represented himself, he was... being lawfully detained or arrested; and three, the defendant falsely represented himself to evade the proper identification of himself."
Lara contends the instruction, as given, was prejudicial error because it did not instruct that the officer was engaged in "a lawful detention or arrest of the person," an element of section 148.9, subdivision (a).
Once again we note, a trial court has a duty to provide correct instructions on all essential elements of a charged offense. (People v. Elam (2001) 91 Cal.App.4th 298, 305-306.) Instructional error omitting or misstating an element of an offense is subject to harmless error analysis under the harmless beyond a reasonable doubt standard. (People v. Flood (1998) 18 Cal.4th 470, 502-503.)
Here, however, despite Lara's claim to the contrary, the instruction did state the jury had to find the officer was engaged in a lawful detention or arrest by stating that the People had to prove that, when Lara gave the officer the false identification, he was "being lawfully detained or arrested." What the instruction did not do was further define the phrase, "lawfully detained or arrested." However, Lara did not request this amplifying or clarifying instruction and his failure to do so forfeits the argument on appeal. (People v. Jenkins (2000) 22 Cal.4th 900, 1020.)
Even assuming the trial court erred in not instructing on the meaning of the phrase "lawfully detained or arrested," any error was harmless under any standard. (People v. Flood, supra, 18 Cal.4th at pp. 490, 502-504; Chapman v. California (1967) 386 U.S. 18, 24; People v. Watson (1956) 46 Cal.2d 818, 835-837.) Lara did not challenge the legality of his June 20, 2014, detention by Officer Vasquez, nor did he challenge the legality of his detention and arrest at the Bank of America on July 9, 2014. There were no disputed facts relating to the lawfulness of the officers' actions for the jury to resolve. Lara suffered no prejudice when the trial court did not define the phrase "lawfully detained or arrested" for the jury. VI. CONVICTIONS FOR BOTH THEFT AND POSSESSION OF THE SAME STOLEN PROPERTY
Lara next contends the trial court erred when it failed to instruct the jurors that he could not be convicted of both theft and possession of the same stolen property. Specifically, Lara contends that because he was convicted in counts 3, 5 and 20 of theft offenses, he may not be convicted in counts 10, 13, and 12 of receiving or possessing the same property stolen in those thefts. We agree with this claim, but note the trial court remedied the issue when it dismissed the corresponding counts. We also reject Lara's claim that, because the trial court failed to instruct on the taking and receiving doctrine, he was prejudiced because the jury heard evidence on all six charges instead of just three.
Applicable Law and Analysis
Section 496, subdivision (a), which defines the crime of receiving stolen property, provides that "no person may be convicted both pursuant to this section and of the theft of the same property." (People v. Garza (2005) 35 Cal.4th 866, 871.) In People v. Recio (2007) 156 Cal.App.4th 719, the Court of Appeal held that "[w]here a defendant is charged with stealing and receiving the same property, the court should instruct the jury to determine the defendant's guilt on the theft count first, and if it finds the defendant guilty of the theft, to return the receiving verdict unsigned." (Id. at p. 726.) The California Supreme Court adopted that holding in People v. Ceja (2010) 49 Cal.4th 1 (Ceja): "[J]uries should be instructed to reach a verdict on the theft charge first when the defendant is also charged with receiving the stolen property. A guilty verdict on the theft charge makes it unnecessary to consider the receiving charge." (Id. at p. 10; see also People v. Magallanes (2009) 173 Cal.App.4th 529, 536.)
In Ceja, as here, the trial court failed to instruct the jury that a defendant could not be convicted of stealing and receiving the same property, and the jury convicted the defendant of both petty theft and receiving the property. (Ceja, supra, 49 Cal.4th at p. 3.) The Court of Appeal reversed the petty theft conviction, reasoning that the "greater" felony offense of receiving stolen property took precedence over the "lesser" misdemeanor theft offense. (Ibid.) The question before the Supreme Court then was, "when a defendant has been improperly convicted of stealing and receiving the same property, what is the appropriate remedy?" (Id. at p. 5.) The Supreme Court reversed, holding that the proper remedy for the improper dual conviction was to reverse the receiving conviction. (Id. at pp. 3-4.) A defendant who is found to be the thief cannot be convicted of receiving the same property, "'and where he is so convicted it is the receiving conviction which is improper. For this reason it is always the receiving conviction which cannot stand, regardless whether it is the lesser or the greater offense.' [Citation.]" (Id. at p. 6.)
Here, the trial court properly dismissed the receiving convictions in count 10 and 13. But the trial court improperly dismissed the theft conviction in count 20 and should have dismissed the corresponding receiving conviction in count 12 instead. VII. IMPOSITION OF SENTENCE ON COUNTS 7, 8, AND 9
Bravo contends multiple punishment for the convictions under counts 7, 8, and 9 is unauthorized under section 654. Bravo was sentenced to consecutive subordinate eight-month terms on counts 7 and 8, and a concurrent one-year jail term on count 9. We agree with Bravo, in part.
Applicable Law and Analysis
Section 654, subdivision (a), provides:
"An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision."
A course of conduct directed to one objective that is divisible in time may give rise to multiple violations and punishments. This is particularly so where the offenses are temporally separated in such a way as to afford the defendant the opportunity to reflect and renew his intent before committing the next. (People v. Gaio (2000) 81 Cal.App.4th 919, 935; People v. Andra (2007) 156 Cal.App.4th 638, 640.) In addition, if a defendant entertains multiple criminal objectives which are independent of and not merely incidental to each other, he may be punished for independent violations committed in pursuit of each objective even though the violations share common acts or are parts of an otherwise indivisible course of conduct. (People v. Beamon (1973) 8 Cal.3d 625, 639.) The trial court's determination of this issue is upheld if based on substantial evidence. (People v. Goodall (1982) 131 Cal.App.3d 129, 148.)
Count 7 charged Bravo with unlawfully entering Bank of America on July 9, 2014, with the intent to commit burglary when he attempted to cash the forged and stolen check from the Robbes (§ 460, subd. (b)); count 8 charged Bravo with possession of the Robbes' stolen property, including the stolen check (§ 496, subd. (a)); and in count 9 with misdemeanor forgery of the stolen check (§ 470, subd. (d)).
In People v. Curtin (1994) 22 Cal.App.4th 528, 532, the court held that the forgery and burglary offenses were part of the same indivisible transaction, "both committed for a single criminal objective, to cash the check." And in People v. Casica (2014) 223 Cal.App.4th 320, 324, the court held that section 654 precluded multiple punishment for defendant's offenses of forgery and commercial burglary in cashing checks with forged signatures at a bank, since the defendant acted with a single objective to take money from the victim's account, and the forgery and burglary were part of the same indivisible transaction.
Bravo contends and the People agree, as do we, that section 654 precludes Bravo from being punished for both commercial burglary (count 7) and forgery (count 9) based on his act of entering the bank to cash a check from the Robbes' account. Thus, the punishment on count 9 should be stayed.
Our analysis does not change with our finding that count 7 must be reduced to a shoplifting misdemeanor, see section VIII. of the Discussion, post.
However, as for count 8, the trial court properly imposed sentence on both counts 7 and 8, as Bravo's crime of receiving stolen property was completed when Bravo initially possessed the Robbes' stolen property. Bravo's criminal intent in possessing the Robbes' stolen property was to keep it from being returned to them. This crime clearly occurred before Bravo decided to enter the Bank of America with the separate intent to cash the Robbes' stolen and forged check. VIII. FELONY CONVICTION FOR SECOND DEGREE COMMERCIAL BURGLARY REDUCED TO MISDEMEANOR
In a supplemental brief, Bravo, again joined by Lara, claim that under the California Supreme Court's decision in Gonzales, supra, 2 Cal.5th 858, they are entitled to have their count 7 felony conviction for second degree commercial burglary (§§ 459, 460, subd. (b)) reduced to misdemeanor shoplifting. Respondent concedes and agrees the matter should be remanded for resentencing on count 7. We agree with the parties.
Applicable Law and Analysis
The conviction on count 7 arose from Bravo and Lara's entry into Bank of America with the intent to cash a stolen check in the amount of $220. On November 4, 2014, California voters enacted Proposition 47, the Safe Neighborhoods and Schools Act, and it went into effect the next day. (People v. Rivera (2015) 233 Cal.App.4th 1085, 1089.) "Proposition 47 makes certain drug- and theft-related offenses misdemeanors, unless the offenses were committed by certain ineligible defendants. These offenses had previously been designated as either felonies or wobblers (crimes that can be punished as either felonies or misdemeanors)." (Id. at p. 1091.)
At the time of trial and sentencing in this case, the trial court and the parties were not operating with the understanding that, by the changes in the law in Proposition 47, entering a bank during business hours with the intent to cash a forged check with a value less than $950 qualified as a misdemeanor. That determination was made while this case was pending appeal. On March 23, 2017, the California Supreme Court filed an opinion addressing the new crime of "shoplifting," as follows:
"Proposition 47 created the new crime of 'shoplifting,' defined as entering an open commercial establishment during regular business hours with the intent to commit 'larceny' of property worth $950 or less. (Pen. Code, § 459.5, subd. (a).) This provision is related to the general burglary statute,
which also applies to an entry with intent to commit 'larceny' or any felony. (Pen. Code, § 459.) In 1927, the theft statutes were consolidated. (Pen. Code, §§ 484, 490a; see Stats. 1927, ch. 619, §§ 1, 7, pp. 1046-1047.) Subsequent cases held the burglary statute included an entry with intent to commit nonlarcenous theft." (Gonzales, supra, 2 Cal.5th at p. 862.)Gonzales held that "the electorate similarly intended that the shoplifting statute apply to an entry to commit a nonlarcenous theft," and thus the court concluded the "defendant's act of entering a bank to cash a stolen check for less than $950, traditionally regarded as a theft by false pretenses rather than larceny, now constitutes shoplifting under the statute." (Ibid.)
"Proposition 47 also created a new resentencing provision: section 1170.18. Under section 1170.18, a person 'currently serving' a felony sentence for an offense that is now a misdemeanor under Proposition 47, may petition for a recall of that sentence and request resentencing in accordance with the statutes that were added or amended by Proposition 47. (§ 1170.18, subd. (a).) A person who satisfies the criteria in section 1170.18 shall have his or her sentence recalled and be 'resentenced to a misdemeanor ... unless the court, in its discretion, determines that resentencing the petitioner would pose an unreasonable risk of danger to public safety.' (§ 1170.18, subd. (b).)" (People v. Rivera, supra, 233 Cal.App.4th at p. 1092, italics added.) Furthermore, "[a] person who has completed his or her sentence for a conviction, whether by trial or plea, of a felony or felonies who would have been guilty of a misdemeanor under this act had this act been in effect at the time of the offense, may file an application before the trial court that entered the judgment of conviction in his or her case to have the felony conviction or convictions designated as misdemeanors." (§ 1170.18, subd. (f).) In Gonzales, because the defendant had completed the felony sentence, he could apply to have his conviction designated a misdemeanor under section 1170.18. (Gonzales, supra, 2 Cal.5th at p. 862.)
Bravo and Lara are currently serving sentences imposed in this case. However, the petition process for seeking resentencing provided in section 1170.18 specifically applies only to "[a] person who, on November 5, 2014, was serving a sentence for a conviction ... of a felony or felonies who would have been guilty of a misdemeanor under the act that added this section ('this act') had this act been in effect at the time of the offense ...." (§ 1170.18, subd. (a); see Gonzales, supra, 2 Cal.5th at p. 862.) Bravo and Lara committed the offense in question on July 5, 2014, but judgment was not imposed until June 24, 2015, and thus they were not serving the sentence on November 5, 2014.
Gonzales determined that the "act of entering a bank to cash a stolen check for less than $950, traditionally regarded as a theft by false pretenses rather than larceny, now constitutes shoplifting under the statute," and constitutes a misdemeanor. (Gonzales, supra, 2 Cal.5th at 862.) As indicated in People v. Yearwood (2013) 213 Cal.App.4th 161, at pages 167 through 168, examining virtually identical statutory language found in Proposition 36, the new rules apply where defendant is convicted and sentenced after the effective date of the statute. That is, "[i]f the crime was committed prior to November 5, 2014, but sentenced after that date, the new sentencing rules will apply to the case. This means that all persons charged with qualified crimes [who] have not been convicted or sentenced as of November 5th will be entitled to misdemeanor treatment without the need to request any kind of a resentencing under section 1170.18. The procedures authorized by section 1170.18 clearly apply only to persons either serving a sentence or who have completed a sentence—circumstances not applicable to persons who have not even been sentenced." (Couzens & Bigelow, Proposition 47: The Safe Neighborhoods and Schools Act (May 2017) < http://www.courts.ca.gov/documents/Prop-47-Information.pdf> p. 12 [as of May 1, 2018].)
Accordingly, we will order count 7 reduced to a misdemeanor for both Bravo and Lara and remand the matter for resentencing. IX. CUMULATIVE ERROR
Lara contends finally that the cumulative effect of all of the above errors deprived him of a fair trial. We have either rejected Lara's claims of error and/or found any errors, assumed or not, were not prejudicial. Viewed cumulatively, we find any errors do not warrant reversal of the judgment. (People v. Stitely (2005) 35 Cal.4th 514, 560.)
DISPOSITION
The matter is remanded for resentencing to reduce the conviction on count 7 to a misdemeanor for both Lara and Bravo; to stay the sentence on count 9 for Bravo; and to dismiss count 12 and reinstate count 20 as to Lara and resentence him accordingly. A corrected copy of the abstract of judgment is to be sent to the California Department of Corrections. In all other respects, the judgment is affirmed.
/s/_________
FRANSON, J. I CONCUR: /s/_________
POOCHIGIAN, Acting P.J. MEEHAN, J., Dissenting.
Although the parties focus in the main on the excusal of potential juror E.H., my concern in this case lies with the majority's affirmance of the trial court's ruling on the motion challenging the excusal of potential juror M.N., brought pursuant to Batson v. Kentucky (1986) 476 U.S. 79 (Batson) and People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler). In my view, the prosecutor's stated justifications for excusing M.N., although facially neutral, lack support in the record. The trial court then failed to meaningfully review the subjective genuineness of the justifications. Critically, an express finding made by the trial court is affirmatively contradicted by the record. Under these circumstances, we cannot defer to the trial court's finding and are constrained under the law to reverse for Batson/Wheeler error. (People v. Gutierrez (2017) 2 Cal.5th 1150, 1172 (Gutierrez); People v. Lenix (2008) 44 Cal.4th 602, 621 (Lenix); People v. Silva (2001) 25 Cal.4th 345, 385-386 (Silva).) Accordingly, I respectfully dissent.
As claimed here, a prospective juror's lack of engagement in the process or inability to understand the proceedings may provide a basis for excusal. (People v. DeHoyos (2013) 57 Cal.4th 79, 105; People v. Reynoso (2003) 31 Cal.4th 903, 925; People v. Ayala (2000) 24 Cal.4th 243, 265, fn. 2.) As well, a prospective juror may be excused based upon demeanor. (Lenix, supra, 44 Cal.4th at p. 613.) Thus, the prosecutor's reliance on M.N.'s demeanor and on concern over her ability to understand the complexities of the case are facially neutral.
However, "[a] Batson challenge does not call for a mere exercise in thinking up any rational basis" (Miller-El v. Dretke (2005) 545 U. S. 231, 252 (Miller-El)), and at the third step, the trial court has a duty to "make 'a sincere and reasoned attempt' to evaluate the prosecutor's justification ...." (Gutierrez, supra, 2 Cal.5th at p. 1159). As the majority states, trial courts are not necessarily required to "question the prosecutor or make detailed findings" (Silva, supra, 25 Cal.4th at p. 386; accord, People v. Manibusan (2013) 58 Cal.4th 40, 76-77; People v. Williams (2013) 56 Cal.4th 630, 653; People v. Arellano (2016) 245 Cal.App.4th 1139, 1159-1160), but where, as here, the prosecutor's stated reasons are unsupported by the record, more is required of the trial court (Silva, supra, at p. 386; accord, Gutierrez, supra, at p. 1171; People v. Arellano, supra, at p. 1160).
With respect to M.N.'s body language, or nonverbal cues, neither the prosecutor nor the trial court provided for the record any insight into the specific issues that were of concern. I am mindful that "[w]hen the trial court's assessment of a prospective juror's capacity to serve is based at least in part on the juror's tone, demeanor, or other elements that cannot be reflected in the written record, its ruling is owed deference by reviewing courts." (People v. Zaragoza (2016) 1 Cal.5th 21, 37.) Nor do I "expect trial judges to provide a continuous recorded narrative during jury voir dire of the appearance, behavior, and intonation of each prospective juror." (People v. Long (2010) 189 Cal.App.4th 826, 848 (Long).) Nevertheless, the prosecutor and the trial court must create a record that allows for a meaningful review and "when the prosecutor bases a peremptory challenge on an unrecorded aspect of a prospective juror's appearance or behavior, we must and will look for some support in the record for the prosecutor's observation." (Long, supra, at p. 848.)
In Long, the Court of Appeal explained that when it comes to nonverbal cues, "[a]ppellate courts are aware of the limitations of the appellate record in revealing the various methods of human communication." (Long, supra, 189 Cal.App.4th at p. 845.) Thus, "[w]ithout audio-visual recordings of jury voir dire, appellate courts must review a prosecutor's exercise of peremptory challenges without all the behavioral information available to the trial court. This institutional limitation is part of what underlies the deference traditionally accorded the trial court ...." (Ibid.) "Doubt may undermine deference, however, when the trial judge makes a general, global finding that the prosecutor's stated reasons were all 'legitimate,' and at least one of those reasons is demonstrably false within the limitations of the appellate record. A trial court 'should be suspicious when presented with reasons that are unsupported or otherwise implausible.'" (Ibid., quoting Silva, supra, 25 Cal.4th at p. 385.)
The only thing that can be gleaned from the record regarding M.N.'s demeanor is that the trial court told her to speak up immediately before she provided her personal information. Assuming this isolated direction from the trial court sufficiently supports the prosecutor's description of M.N. as soft-spoken, his reference to her body language remains meaningless given the absence of any context. (See People v. Parker (2017) 2 Cal.5th 1184, 1210 [trial court noted excused juror's expressed reticence to serve, eagerness to obtain hardship form, request for excusal based on hardship and audible groan coupled with matching facial expression when directed to sit]; People v. Scott (2015) 61 Cal.4th 363, 378 [in capital case challenge to an excusal for cause, trial court noted "'reading between the lines and watching her, her body language, and the way she answered, her reluctance to look up, what she's really saying is she couldn't vote for the death penalty in the real world'"]; Long, supra, 189 Cal.App.4th at p. 839 [prosecutor noted, as one factor for excusal, lack of eye contact during voir dire of first 12 jurors].)
While "[a] prospective juror may be excused based upon facial expressions, gestures, hunches, and even for arbitrary or idiosyncratic reasons" (Lenix, supra, 44 Cal.4th at p. 613), it is incumbent on the prosecutor and the trial court to ensure a record that is minimally sufficient to permit us to defer to the court's express or implied findings on demeanor (id. at pp. 623-625; Silva, supra, 25 Cal.4th at p. 385; Long, supra, at p. 848). Moreover, as discussed, post, there is nothing in the record to substantiate the prosecutor's stated belief that M.N. was not well-suited given the complexity of the case, and the trial court's representation that she had some difficulty answering its questions is contradicted by the record. "We are unable to extend normal deference to the trial court's implied finding on this point when another stated reason, though pronounced 'legitimate' by the trial court, was demonstrably inaccurate." (Long, supra, at p. 848.)
Next, the prosecutor and the trial court described M.N. as quiet. After M.N. and six other potential jurors were seated in the jury box, the trial court engaged in voir dire of the seven new members. Issues the court inquired about included the trial's two-week timeline; prior jury service experience; and whether any jurors, or their family or friends had been the victim of a crime, had been charged with a crime or had law enforcement ties. It was following this voir dire session by the trial court that the prosecutor commented M.N. had been a little quiet, indicating first that he would get back to her and, subsequently, that he would talk with her a little. He then inquired what a "CNA" is, how long she had been doing that and whether she had ever been in court before, to which she confirmed she had not. Any fault with M.N.'s responses to these questions is not apparent from the record; her responses appear direct and unambiguous. On this record, the only reasonable inference that can be drawn from the prosecutor's comments about M.N.'s quietness following the trial court's voir dire is that, unlike some of the other potential jurors, she did not have any information or experiences to report.
This leaves the prosecutor's statements about M.N.'s inattention, inability to engage meaningfully and inability to follow the complexity of a multi-count, two-defendant case. This purported concern gives me the most pause given the record.
The defense disputed the prosecutor's characterization of M.N. and whatever nonverbal cues may have existed are not discernible, as discussed. Moreover, the prosecutor's voir dire of M.N. was extremely limited and touched only on what the initials "CNA" stand for, how long she had been employed in that capacity and whether she had been in court before. As Bravo and Lara point out, the prosecutor did not ask M.N. any questions even arguably probative of her level of engagement and ability to understand or follow complex proceedings. Given the prosecutor's later-stated concern, his voir dire of M.N. was curiously cursory. Notably, M.N.'s responses to the questions that were asked of her by the prosecutor provide no discernible cause for concern.
Bravo's counsel stated, "I didn't notice everything the prosecution did. I was awake and paying attention, I didn't see that she couldn't concentrate or that she was sleeping or whatever else was subjectively noticed about her. I thought she was attentive. She answered to questions on point. There was—and, again, answered the basic question of 'can you be fair and impartial and unbiased' and she said she could clearly."
Nor is the failure to seek information probative of her engagement or understanding explainable by reference to questions asked by the court or defense counsel, as there were none. (See People v. Arellano, supra, 245 Cal.App.4th at p. 1163, citing People v. Lewis (2008) 43 Cal.4th 415, 476, rejected in part on other grounds in People v. Black (2014) 58 Cal.4th 912, 917-920.) As the United States Supreme Court has recognized, "the failure to ask undermines the persuasiveness of the claimed concern." (Miller-El, supra, 545 U. S. at p. 250, fn. 8.) Thus, no substantiation can be found in the record for the prosecutor's stated concern that M.N. was not engaged and the case would be too difficult for her.
Finally, the trial court's assertion that M.N. "was able to answer the questions that I posed to her, but there was a little difficulty with them" also lacks substantiation. During the trial court's panel-wide voir dire, M.N. provided her personal information, but she did not respond to any of the panel-wide voir dire questions and the court did not ask her any individual questions. In this regard, the record is inconsistent with the trial court's finding that M.N. had a little difficulty with some of the questions it posed to her.
The majority characterizes this finding as an incorrect "observation" and, citing Gutierrez, states the proper step in such circumstances "is to eliminate that mistaken reason from consideration as a basis for disqualification." (Maj. opn., p. 23, fn. 9.) I agree that in assessing "the viability of neutral reasons advanced to justify a peremptory challenge by a prosecutor, both a trial court and reviewing court must examine only those reasons actually expressed." (Gutierrez, supra, 2 Cal.5th at p. 1167.) However, in Gutierrez, the trial court discussed one basis for excusal—the potential juror's lack of life experience—not cited by the prosecutor. (Id. at p. 1172.) In contrast, here the trial court's "observation" was its finding on a substantive reason proffered by the prosecutor as justification for excusing M.N.
As such, the trial court's contradictory finding may not be so easily dismissed as merely an incorrect observation. As the United States Supreme Court recently reiterated, "We have 'made it clear that in considering a Batson objection, or in reviewing a ruling claimed to be Batson error, all of the circumstances that bear upon the issue of racial animosity must be consulted.' [Citation.] As we have said in a related context, '[d]etermining whether invidious discriminatory purpose was a motivating factor demands a sensitive inquiry into such circumstantial ... evidence of intent as may be available.'" (Foster v. Chatman (2016) ___ U.S. ___, ___ [2016 U.S. Dist. Lexis 3486, 23]; accord, People v. Reynoso, supra, 31 Cal.4th at p. 925.)
On appeal, we must "exercise great restraint in reviewing a prosecutor's explanations and typically afford deference to a trial court's Batson/Wheeler rulings ...." (Gutierrez, supra, 2 Cal.5th at p. 1172; accord, Silva, supra, 25 Cal.4th at pp. 385-386.) I am sensitive to the burden imposed on the trial court. However, we are bound by the law and the California Supreme Court has expressly acknowledged the challenges faced by trial courts in this context, explaining, "[W]e can only perform a meaningful review when the record contains evidence of solid value. Providing an adequate record may prove onerous, particularly when jury selection extends over several days and involves a significant number of potential jurors. It can be difficult to keep all the panelists and their responses straight. Nevertheless, the obligation to avoid discrimination in jury selection is a pivotal one. It is the duty of courts and counsel to ensure the record is both accurate and adequately developed." (Gutierrez, supra, at p. 1172; accord, People v. Winbush (2017) 2 Cal.5th 402, 434; Lenix, supra, 44 Cal.4th at pp. 621-622; Silva, supra, at pp. 385-386.)
At the third step, "the Batson/Wheeler inquiry focuses on the subjective genuineness of the reason, not the objective reasonableness." (Gutierrez, supra, 2 Cal.5th at p. 1158; accord, Lenix, supra, 44 Cal.4th at p. 613.) In this case, it is my view that with respect to M.N., "the record does not permit us to find that the trial court met its obligations to make '"a sincere and reasoned attempt to evaluate the prosecutor's explanation"' and 'clearly express its findings.'" (Gutierrez, supra, at p. 1175.) For this reason, I believe we are constrained to reverse the trial court.
To be clear, nothing in the four corners of this record affirmatively reveals any discriminatory animus on the part of the prosecutor, but that is not the test under Batson/Wheeler. As the United States Supreme Court has stated, "'[f]or more than a century, this Court consistently and repeatedly has reaffirmed that racial discrimination by the State in jury selection offends the Equal Protection Clause.' [Citations.] [¶] The rub has been the practical difficulty of ferreting out discrimination in selections discretionary by nature, and choices subject to myriad legitimate influences, whatever the race of the individuals on the panel from which jurors are selected." (Miller-El, supra, 545 U.S. at p. 238.) "The Batson framework is designed to produce actual answers to suspicions and inferences that discrimination may have infected the jury selection process." (Johnson v. California (2005) 545 U.S. 162, 172.) "Some stated reasons are false, and although some false reasons are shown up within the four corners of a given case, sometimes a court may not be sure unless it looks beyond the case at hand. Hence Batson's explanation that a defendant may rely on 'all relevant circumstances' to raise an inference of purposeful discrimination." (Miller-El, supra, at p. 240.) Moreover, the constitutional concerns underpinning Batson and its progeny sweep more broadly than the defendant's individual right to trial by an impartial jury; racial discrimination harms racial minorities more generally and undermines the public's confidence in adjudication. (Miller-El, supra, at pp. 237-238.) I cannot conclude the trial court discharged its duty to meaningfully review the subjective genuineness of the prosecutor's stated reasons for excusing M.N. where the record fails to provide any elucidation regarding a concern over M.N.'s demeanor and fails to support a concern M.N. would have difficulty with the complexity of the case, and where the trial court's express finding on the latter matter is contradicted by the record.
/s/_________
MEEHAN, J.