Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Contra Costa County Super. Ct. No. 050605154.
NEEDHAM, J.
Appellant Angela Bianca Chew was placed on felony probation after a jury convicted her of possessing cocaine base for sale. (Health & Saf. Code, § 11351.5.) She contends the judgment must be reversed because the prosecution struck two Hispanic jurors in violation of Batson v. Kentucky (1986) 476 U.S. 79 (Batson) and People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler). We affirm.
I. Facts
Officers from the El Cerrito Police Department went to room 54 of the Terrace Motel to investigate a vehicle that had been reported stolen. Appellant answered the door and appeared to be the only one in the room. A plastic bag containing 12 individual baggies of crack cocaine, totaling 2.25 grams in weight, was discovered during a search of the nightstand drawer, along with $118 in currency. Appellant admitted that the cocaine belonged to her, that each rock was valued at about $10, that she was selling drugs and had been doing so for about five years, and that she did not use cocaine herself. No drugs or paraphernalia were found in appellant’s purse or on her person, and she did not appear to be under the influence.
Before the case was submitted to the jury, the trial court granted appellant’s motion for acquittal on additional counts of receiving a stolen vehicle and unlawfully taking or driving a vehicle. (Pen. Code, §§ 1118.1, 496d; Veh. Code, § 10851, subd. (a).) We discuss only those facts relevant to the possession for sale charge.
II. Discussion
The use of peremptory challenges to excuse prospective jurors based on race or ethnicity violates a defendant’s right to equal protection under the federal Constitution as well as the state constitutional right to trial by a jury drawn from a representative cross-section of the community. (Batson, supra, 476 U.S. at p. 89; Wheeler, supra, 22 Cal.3d at pp. 276-277, overruled in part on another ground in Johnson v. California (2005) 545 U.S. 162 (Johnson); see also People v. Bell (2007) 40 Cal.4th 582, 596 (Bell); People v. Jurado (2006) 38 Cal.4th 72, 104 (Jurado).) Courts apply a three-step process for analyzing a Batson-Wheeler claim. First, the complaining party must make out a prima facie case of discrimination. Second, the party who exercised the challenge must state nondiscriminatory reasons. Third, the trial court must decide whether the complaining party has proved purposeful discrimination. (Johnson, supra, at p. 168; Bell, supra, at p. 596.)
The written jury questionnaire in this case asked prospective jurors, “Do you have an opinion or attitude about the criminal justice system which would make it difficult for you to be fair?” Prospective jurors Manuel N. and Ashley R. each answered this question “Yes.” Their questionnaires also indicated that they each had a close friend or family member who had been a victim, witness or defendant in a criminal matter.
When questioned by the court, Manuel N. revealed that he had a close friend who had been prosecuted for selling drugs. He did not believe his friend’s case had been handled properly by law enforcement. Asked about his statement in the jury questionnaire that it would be difficult for him to be fair, Manuel N. explained “I just think sometimes it’s unfair how the court works. I don’t really like how they work. [¶] . . . [¶] . . . I have seen stuff, like, someone murders somebody gets less time than someone with like drugs or something.” When asked whether his friend’s situation would affect his approach to this case, he responded, “Hm, not really, no.” When asked whether his feelings about the court system were so strong they would interfere with his ability to be a fact finder in appellant’s case, he stated, “Maybe a little, I don’t know.” He said he did not think he could give both sides a fair hearing.
During questioning by defense counsel, Manuel N. said that he could make a decision based on the evidence and instructions on the law, but explained, “They [the prosecution] just have to have like probably like real good evidence to really get me there.” Asked by the prosecutor whether he would automatically distrust the police officer witnesses, he said, “No. I’ll listen to him, I mean, it will still be in my mind that that happened, but I’ll still be listening to him, and I wouldn’t be--.” He did say he would hold the prosecution to its burden, but not beyond its burden.
Ashley R. informed the court that she had a friend who had been charged with narcotics possession and she believed law enforcement “did a little bit beyond what they should have done.” Her mother also had some issues with drugs, although she had not been prosecuted. Ashley R. stated that despite these experiences, she believed she could give both sides a fair hearing.
The prosecution used two of its peremptory challenges to excuse Manuel N. and Ashley R., both of whom defense counsel characterized as Hispanic. Appellant, an African American woman, objected to these challenges as discriminatory under Batson-Wheeler. The trial court asked the prosecution to explain its reasons for excusing the two jurors.
Hispanics are a cognizable group for Batson-Wheeler purposes. (People v. Ayala (2000) 23 Cal.4th 225, 256.) The defendant need not be a member of the excluded group to object to a discriminatory peremptory challenge. (Bell, supra, 40 Cal.4th at p. 597; People v. Burgener (2003) 29 Cal.4th 833, 863.)
The prosecutor responded that Manuel N. had a close friend who had been prosecuted for drugs. He did not think his friend had been treated fairly by the system, and the prosecutor believed he would not fairly evaluate the credibility of police officer witnesses, which was worrisome because the present case was about drug possession and the testimony of the police officers who conducted the search of appellant’s motel room would be critical. The prosecutor noted that Manuel N. had shifted from telling the court he probably could not be fair to telling defense counsel that he could be, and she was concerned that some of his comments suggested he would hold the prosecution to a higher burden than proof beyond a reasonable doubt.
As for Ashley R., the prosecutor indicated that she had not even realized this juror was Hispanic or a member of any particular minority group based on her appearance. She had challenged this juror because she had a friend charged with drug possession and believed that law enforcement went beyond what they should have done in that case. Ashley R. had also indicated her mother had a drug problem.
Although defense counsel described Ashley R. as “of some Hispanic origin and/or Latina in some way,” neither the court nor the prosecutor could identify her racial or ethnic group. Given our resolution of the Batson-Wheeler issues, we need not decide whether defense counsel’s description was sufficient to demonstrate Ashley R.’s membership in a cognizable class.
After hearing the prosecutor’s explanation, the court sustained the challenges as having been made for nondiscriminatory reasons. We reject appellant’s claim that this was error.
Where, as here, the court asks the prosecution to explain its peremptory challenges, the issue of a prima facie case becomes moot and we review instead the adequacy of the prosecution’s explanation and the ultimate issue of intentional discrimination. (Jurado, supra, 38 Cal.4th at p. 104; People v. Fuentes (1991) 54 Cal.3d 707, 717.) “When a trial court has made a sincere and reasoned effort to evaluate each of the stated reasons for a challenge to a particular juror, we accord great deference to its ruling, reviewing it under the substantial evidence standard.” (Jurado, supra, at pp. 104-105.)
Both of the challenged jurors were close to people who had been the subject of criminal proceedings for drug possession. They shared a belief that their friends had been treated too harshly by law enforcement. Both had indicated on their written questionnaires that their experience would make it difficult for them to be fair in evaluating the evidence in this case. Manuel N. gave conflicting answers during questioning about his ability to fairly assess the prosecution’s evidence. There is nothing implausible about the prosecutor’s explanations for the peremptory challenges, and the trial court was entitled to accept them as bona fide. Substantial evidence supports the trial court’s conclusion that the prosecutor acted for legitimate, nondiscriminatory reasons.
Appellant argues that the prosecutor’s reasons should not be accepted as legitimate, because she did not also challenge an apparently Caucasian juror with experiences similar to Manuel N. and Ashley R. Juror No. 21, like the two excused prospective jurors, had indicated on her written questionnaire that she had an opinion or attitude about the criminal justice system that would make it difficult for her to be fair in this case. She explained during voir dire that her brother had been before the court on drug related charges, and that she thought that he had been treated properly in some situations but not in others. She had strong feelings about his circumstances, but this was because she believed he should have been dealt with more harshly than he had been.
The responses given by juror No. 21 are readily distinguishable from those given by Manuel N. and Ashley R., who believed that friends charged with drug offenses had been treated too harshly by law enforcement. The prosecutor could reasonably infer that these prospective jurors might be biased against law enforcement and the prosecution, as well as unduly sympathetic to appellant. Juror No. 21, on the other hand, believed her brother had not been treated harshly enough in his drug-related cases, suggesting she would not be sympathetic to the defense and would make a desirable juror from the prosecution’s perspective. The prosecutor’s decision to retain juror No. 21 and excuse Manuel N. and Ashley R. can be explained by the differences in their attitudes toward law enforcement and drug use.
Appellant also suggests that a discriminatory motive is demonstrated because the prosecutor excused Manuel N. and Ashley R. for a purported bias against the system, but opposed a defense motion to excuse for cause three prospective Caucasian jurors who indicated a similar bias: Karl S., who thought the system was flawed and would have difficulty presuming innocence; David O., who had been a crime victim several times and was not sure whether he could put this history aside when considering the criminal charges in this case; and Michael M., who had been the victim of a vehicle theft and indicated this might cloud his ability to be objective. None of these responses suggest a bias against the prosecution, and the prosecutor’s decision to argue against their dismissal for cause does not suggest she acted with discriminatory animus when she peremptorily challenged other jurors who had arguably expressed such a bias. Putting aside the different standard applicable to a challenge for cause, there is nothing inconsistent—much less discriminatory—in the prosecutor’s decision to oppose these for-cause challenges while excusing Manuel N. and Ashley R.
III. Disposition
The judgment is affirmed.
We concur. SIMONS, Acting P. J., GEMELLO, J.