Opinion
B144015.
7-24-2003
THE PEOPLE, Plaintiff and Respondent, v. TRAVON EDWARD CLARDY, Defendant and Appellant.
Michele A. Douglass, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Margaret E. Maxwell and Erika D. Jackson, Deputy Attorneys General, for Plaintiff and Respondent.
Travon Edward Clardy appeals from the judgment entered following a jury trial resulting in his convictions of willful, deliberate and premeditated attempted murder (Pen. Code, §§ 664/187, subd. (a), 189; count 1), first degree robbery (& sect; 211; count 2), first degree burglary (§ 459; count 3), and two counts of assault with a firearm (§ 245, subd. (a)(2); counts 2, 4 & 5). The jury also found true in counts 1, 2, and 3, that he used a firearm (§ 12022.5, subd. (a)(1)) and in counts 1 and 2, that he personally and intentionally discharged a firearm proximately causing great bodily injury (& sect; 12022.53, subds. (b)-(d)). He admitted that he had a prior conviction of robbery, a serious felony ( § 667, subd. (a)(1)), which also qualified him for sentencing pursuant to the three strikes law (§§ 667, subds. (b)-(i), 1170.12). The trial court imposed an aggregate term of imprisonment of 54 years to life.
All further statutory references are to the Penal Code unless otherwise indicated.
Appellant makes one contention: he claims that the trial court committed Wheeler error. (People v. Wheeler (1978) 22 Cal.3d 258, 276-277, 148 Cal. Rptr. 890, 583 P.2d 748.)
We reject the contention and affirm the judgment.
FACTS
On May 8, 1999, L. W., a drug dealer, and his fiancee lived with their three children in an apartment on Don Tomaso Drive in the Crenshaw area of Los Angeles. That evening, L.W.s sister was visiting with her toddler. Appellant, "Baby Boy," and "Baby Brazi" also visited the apartment briefly. Afterwards, L.W. walked the men outside. Suddenly, appellant and Baby Boy pointed handguns at L.W. They pursued L.W. inside his apartment, and appellant shot L.W. in the chest. Demanding money, Baby Boy held his gun to the fiancees head. L.W. and appellant struggled, and Baby Boy walked over and shot L.W. three times. After wresting L.W.s Rolex necklace off his neck, appellant and Baby Boy left. The Rolex necklace was worth about $ 3,000. L.W. suffered live-threatening gunshot wounds, but he survived.
Appellant presented no defense.
DISCUSSION
Appellant contends that he was denied his state and federal constitutional rights to trial by a jury drawn from a representative cross-section of the community (Cal. Const., art. I, § 16; U.S. Const., 14th Amend.) because the prosecutor impermissibly used one peremptory challenge to remove a prospective juror on the basis of race. (Batson v. Kentucky (1986) 476 U.S.79, 84-89, 90 L. Ed. 2d 69, 106 S. Ct. 1712; People v. Wheeler, supra, 22 Cal.3d at pp. 276-277.)
He specifically claims that the prosecutors stated reasons for exercising a peremptory challenge were pretexts. Because the trial court did not specifically inquire into each of the reasons for the prosecutors challenge, he argues that it failed to make a record showing a sincere and reasoned attempt to evaluate whether the prosecutors stated reasons were genuine or a sham. On such a record, he asserts the prima facie showing of purposeful discrimination is not rebutted, and this court is required to reverse his conviction.
1. Pertinent Facts
Appellant is an African-American male.
The trial court used a "modified six-pack" method for jury selection, and the trial court, rather than counsel, conducted all voir dire with the assistance of a questionnaire that the trial court had distributed to the prospective jurors. After the trial court randomly selected and questioned 20 prospective jurors, the trial court paused to consult with counsel about challenges for cause. Each counsel asked the trial court to make a further, brief inquiry of a different prospective juror. The trial court queried the two prospective jurors, counsel passed for cause, and then the trial court commenced with counsels exercise of peremptory challenges.
The prosecutor exercised her second peremptory challenge against prospective Juror No. 6, an African-American man. Appellants counsel made a Wheeler motion, claiming that there was "nothing wrong with" the prospective juror and that the challenge was based solely on group bias. The trial court noted that the prospective juror was the only African-American prospective juror "in the box." The trial court considered the motion and said, "Well, the question in my mind is whether I should make a prima facie finding there are obvious reasons why this juror should be excused [sic]. I will make a prima facie finding and ask you to explain your reasons . . . ."
The prosecutor replied, "First of all, all my witnesses in this case are [African-American]. Has nothing to do with that. [Sic .] The juror, his appearance alone, for one, was one thing. I dont know if the court saw the hair in the back of his head — ponytail. When he was leaving the courtroom, he put on dark glasses before he got out of the courthouse, he brought the courts questions out there with him, they [sic] after that, his answer to the questions, frankly, I mean, he hasnt had a job since 1983. I think that alone — [P] . . . [P] . . . He has been a student since 1983[;] he only held jobs. [Sic.] He was evasive in his answers to the court questions. It just appeared to me he didnt want to be here from the second he came here to the second leaving, and his questions alone, every single question that the court asked him, he stalled for two or three minutes or a few seconds, and then went ahead and answered either he only held summer jobs. And theres where the court, I think finally said, well, you are a student and then he said, yes. Well you graduate, no."
The trial court interrupted the prosecutor and said, "Okay, stop. Im not sure I agree with everything that you said. I agree with a lot of it. [P] The fact that basically he hasnt worked since 1983 or barely has, I would think would be sufficient basis for him to be excused. So . . . I find the reasons to be justified. The motion is denied."
Earlier during voir dire, prospective Juror No. 6 had disclosed that he lived in Long Beach, he was unmarried, he had no children, and he had prior civil and criminal jury experience. He deliberated and reached a verdict in the civil case; he was an alternate juror in the criminal case. In response to questions by the trial court, the prospective juror indicated that his last employment was summer work in a naval shipyard. Before that, he had worked two summers for the Long Beach Unified School District. The trial court commented that the jurors employment had been summer work and inquired if the juror had been attending school. The prospective juror replied that he had attended Long Beach State, but he had not graduated, and he last attended school in 1983. His major was criminal justice. The trial court inquired if he intended to become a police officer, and the prospective juror replied, "No." The trial court asked if prospective juror could be a fair and impartial juror in the case, and he replied, "Yes."
2. Applicable Law
Improperly exercising peremptory challenges to excuse prospective jurors on the basis of race violates the federal and state Constitutions. (Batson v. Kentucky, supra, 476 U.S. at pp. 84-89; People v. Wheeler, supra, 22 Cal.3d at pp. 276-277.)
People v. Silva (2001) 25 Cal.4th 345, 384 described the process the trial court is to follow in determining a Wheeler motion. If the opponent of a peremptory challenge has made out a prima facie case of racial discrimination (step one), the burden of production shifts to the proponent of the strike to come forward with a race-neutral explanation (step two). If a race-neutral explanation is tendered, the trial court must then decide (step three) whether the opponent of the strike has proved purposeful racial discrimination.
Where, as here, in step one, the trial court has ruled for the defense by finding a prima facie case of improper discrimination, the reviewing court assumes that substantial evidence supports that determination. (See People v. Alvarez (1996) 14 Cal.4th 155, 197, 926 P.2d 365.) In step two, the prosecutor defends her use of peremptory challenges by stating race-neutral reasons for that exercise. (See Purkett v. Elem (1995) 514 U.S. 765, 768, 131 L. Ed. 2d 834, 115 S. Ct. 1769 ["Unless a discriminatory intent is inherent in the prosecutors explanation, the reason offered will be deemed race neutral"].) On appeal, a reviewing courts concern is with step three: whether the record as a whole shows purposeful discrimination. (People v. Silva, supra, 25 Cal.4th at p. 384.)
At step two, "the party seeking to justify a suspect excusal need only offer a genuine, reasonably specific, race- or group-neutral explanation related to the particular case being tried. [Citations.] The justification need not support a challenge for cause, and even a "trivial" reason, if genuine and neutral, will suffice. [Citations.]" (People v. Ervin (2000) 22 Cal.4th 48, 74-75, 990 P.2d 506.) The trial courts ruling on this issue is reviewed for substantial evidence. (People v. Alvarez, supra, 14 Cal.4th at p. 196.) However, "we apply this deferential standard of review only when the trial court has made a sincere and reasoned attempt to evaluate each stated reason as applied to each challenged juror. [Citations.]" (People v. McDermott (2002) 28 Cal.4th 946, 971.)
"The exclusion by peremptory challenge of a single juror on the basis of race or ethnicity is an error of constitutional magnitude requiring reversal. [Citations.]" (People v. Silva, supra, 25 Cal.4th at p. 386.)
3. Analysis
Appellant argues that the trial courts comments in denying his Wheeler motion show that the trial court abdicated its duty to determine if the prosecutor exercised her peremptory challenge for reasons of specific bias. He claims that a prospective jurors unemployment cannot serve as a race-neutral reason for challenging a prospective juror, as that juror merely may have been disabled or financially independent, and urges that such a reason "does not address the question of discrimination," show that the "juror possessed any specific bias in the cause about to be tried," or refute an allegation of group bias. He claims that this record shows that the trial court rubber-stamped the prosecutors unemployment rationale without further probing, and thus the evidence in the record fails to rebut the inference established by the trial court when it found a prima facie case of purposeful discrimination.
The Attorney General claims there is a waiver of appellants federal constitutional claim because in the trial court, counsel called his complaint a "Wheeler motion" and did not mention Batson v. Kentucky, supra, 476 U.S. 79, 90-91. We reject the claim. "Because essentially the same standard applies under either Wheeler, supra, 22 Cal.3d 258 or Batson v. Kentucky, supra, 476 U.S. 79 [citation], and because defendant fails to show that his rights under California law were violated, the point is moot." (People v. Farnam (2002) 28 Cal.4th 107, 139, fn. 11; People v. Catlin (2001) 26 Cal.4th 81, 117, fn. 4.)
Contrary to appellants claim, the trial court properly exercised its discretion. The prosecutors reasons for exercising a peremptory challenge were case specific or race neutral. The reasons rebutted the trial courts finding of a prima facie case of purposeful discrimination.
The prosecutor set forth a number of reasons for challenging the prospective juror. She said that he wore a ponytail, and at the recess, he had quickly donned his sunglasses in the courtroom before he was anywhere near the outdoors. Apart from his appearance and demeanor, he had not held a job or attended school since 1983, and his life experience apparently was limited to decade-old summer jobs and being a student. The prosecutor complained that the prospective juror left the impression during voir dire that he was being evasive about his employment and school history, and she had concluded that his demeanor indicated that he was disingenuous. Further, his demeanor indicated that he wished to be elsewhere.
All that is required to rebut the presumption of purposeful discrimination is that the prosecutor justify her challenge with a genuine, reasonably specific, race- or group-neutral explanation for the use of the Peoples peremptory challenge.
In making her statement of specific bias, the prosecutor proffered a variety of race-neutral and specific reasons to the trial court. After listening to at least four reasons, the trial court interrupted the prosecutor, having heard enough to persuade it that the prosecutors reasons were genuine and specific to the case or individual and race-neutral. The trial court concluded that the prospective jurors unemployment alone was sufficient in this case to constitute a race-neutral reason for excusing him, and most of the prosecutors other reasons were adequate to rebut any inference of purposeful discrimination.
Unemployment can be temporary or chronic; it is not a condition distinguishing any particular race, religion, or ethnic group. Everyone is subject to its effects. Employment, or the lack of it, can be a proper race-neutral criteria for exercising a peremptory challenge. (People v. Trevino (1997) 55 Cal.App.4th 396, 411-412 [occupation can be a permissible, nondiscriminatory reason for exercising a challenge]; People v. Dominick (1986) 182 Cal. App. 3d 1174, 1195, fn. 13, 227 Cal. Rptr. 849 [it is permissible to have exercised a peremptory challenge against a prospective juror who is an unemployed divorcee with three children who quit her last job after only three months]; Stubbs v. Gomez (9th Cir. 1999) 189 F.3d 1099, 1107 [a jurors employment status or income level is a permissible reason for exercising a peremptory challenge]; Howard v. Moore (4th Cir. 1997) 131 F.3d 399, 408 [erratic work history, spouses unemployment, and unstable work history are not pretextual]; U.S. v. Hunter (7th Cir. 1996) 86 F.3d 679, 683 [prospective juror had limited education, unstable employment history, he was unmarried and his family did not have strong ties to the community]; U.S. v. Brown (1994) 34 F.3d 569, 571 [challenge striking a juror because she and everyone in her household are unemployed will survive scrutiny, especially when, as here, the defendant is also unemployed; the prosecutor of such an unemployed defendant may have concerns that an unemployed juror might be improperly sympathetic].)
Further, the trial court credited some of the other race-neutral reasons that the prosecutor had expressed as applying to the particular case, for example, the prospective jurors apparent evasiveness in replying to the questions and his apparent wish to be elsewhere. (People v. Turner (1974) 8 Cal.4th 137, 170-171, 878 P.2d 521 [body language used by the prosecution as an interpretative tool to evaluate other factors is sufficient to justify a peremptory challenge];People v. Montiel (1993) 5 Cal.4th 877, 909, 855 P.2d 1277 [manner of answering questions during voir dire is a legitimate reason for challenging a prospective juror]; People v. Johnson (1989) 47 Cal.3d 1194, 1215-1216, 255 Cal. Rptr. 569, 767 P.2d 1047, quoting from People v. Wheeler, supra, 22 Cal.3d at p. 275 [counsel may develop "a mistrust of a jurors objectivity on no more than the sudden impressions and unaccountable prejudices we are apt to conceive upon the bare looks and gestures of another"].)
We reject appellants claim that without a further probing of the prosecutors reasons, that unemployment alone was insufficient as a matter of law to rebut the trial courts finding of a prima facie case discrimination. The trial court properly found that the prosecutor had several legitimate reasons for wanting the juror excused, including his lack of employment. Nothing more was required of the trial court by way of probing the prosecutors stated reasons to make sure that the reasons were genuine. The trial court also was not required to probe further into the information provided by the prospective juror. In this case, the questioning by the trial court shows that it tactfully attempted to elicit more about the prospective jurors personal circumstances. However, a trial court is not required during voir dire without a further request from counsel to probe so deeply into a prospective jurors personal circumstances that it embarrasses or offends a juror. The trial court went far enough in questioning the prospective juror to discover that he was not going to elaborate on his unemployment without further pointed questioning.
The prosecutors race-neutral reasons are supported by the record and inherently plausible. Hence, the trial courts finding was sufficient to be a valid determination that there was no purposeful discrimination (Cf. People v. Silva, supra, 25 Cal.4th at pp. 385-386 [where the prosecutors stated reasons are not supported by record or inherently implausible, the trial court is required to examine each stated reason as applied to challenged jurors; if that is not done, a global finding that the prosecutors reasons are sufficient is not enough to rebut the earlier finding of purposeful discrimination].) There is no evidence in this record that the trial court was a rubber stamp for the prosecutors pretextual reasons for ridding the jury of African-American jurors or that it failed in its duty to determine if the prosecutors stated reasons were credible. The evidence in the record is substantial in supporting the trial courts determination of no purposeful discrimination. (People v. Ervin, supra, 22 Cal.4th 48, 76.)
The judgment is affirmed.
We concur: BOREN, P.J., DOI TODD, J.