Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County, Leo Valentine, Jr. and Albert T. Hartunian III, Judges. Super. Ct. Nos. SCD199293, SCD202742, SCD204798
HALLER, J.
Terence Cross appeals from a judgment convicting him of possession of cocaine base, sale of cocaine base, and possession of cocaine base for sale. He contends (1) the trial court erred in denying his Batson/Wheeler motion claiming the prosecutor's peremptory excusal of a juror was based on racial grounds, and (2) the evidence is insufficient to support the jury's verdict that he possessed cocaine base with the intent to sell it. We reject these contentions and affirm the judgment.
Batson v. Kentucky (1986) 476 U.S. 79; People v. Wheeler (1978) 22 Cal.3d 258.
FACTUAL AND PROCEDURAL BACKGROUND
In two cases consolidated for trial, Cross was charged with (1) possession of cocaine base for sale on May 25, 2006, and (2) sale of cocaine base and possession of cocaine base for sale on November 8, 2006. For the May 25 offense, the jury acquitted him of possession of cocaine base for sale, and convicted him of the lesser offense of possession of cocaine base. For the November 8 offense, the jury convicted him as charged (sale and possession for sale). On appeal, Cross raises the Batson/Wheeler issue, and challenges the sufficiency of the evidence to support his conviction of the November 8 offense of possession of cocaine base for sale.
The May 25 possession offense occurred in the area of Park and Market in downtown San Diego. An undercover police officer (Christopher Leahy) observed what appeared to be a "hand-to-hand" narcotics sales transaction in which Cross passed narcotics to another person. Leahy communicated what he had observed to a uniformed police officer, and the police detained Cross. During a search of Cross, the police found $16 cash and six pieces of rock cocaine valued at about $90 to $120. After waiving his Miranda rights, Cross admitted that he had given rock cocaine to the man observed by Officer Leahy. Cross told the police that the man had earlier given him $15 to buy the drugs at the same time Cross was purchasing drugs for himself. Cross stated he was addicted to rock cocaine; he was using between $100 and $150 worth of the drug per day; and the drugs found in his possession were for personal use. At trial, a prosecution expert opined that Cross possessed the six rocks of cocaine for sale, but acknowledged that this amount of cocaine base could be for personal use. When the police searched Cross's home at the time of his May 25 arrest, they did not find any indicia of sales such as pay-and-owe sheets, weighing scales, packaging material, additional drugs, or weapons.
The November 8 offense occurred during an undercover "buy-bust" operation in the area of Island Avenue and 17th Street in downtown San Diego. Undercover officer Jesse Zaldivar saw Cross rolling a cigarette in his hand with brown rolling paper. When Cross made eye contact with Officer Zaldivar, Zaldivar gave him a hand signal that meant he wanted $20 worth of cocaine base. In response, Cross asked Zaldivar what he wanted. Zaldivar asked him if he had a "dub" (meaning $20 worth of cocaine base) and Cross responded that he did. Cross began walking and Zaldivar accompanied him. Cross asked if Zaldivar was a police officer; Zaldivar responded no. Cross rummaged through his pockets, retrieved a piece of rock cocaine, and asked for the money. Zaldivar gave him $20 worth of prerecorded bills. Cross examined the money, and then placed a piece of rock cocaine (worth about $10) in Zaldivar's hand. Zaldivar gave an arrest signal to other members of the narcotics team, and the police arrested Cross. When searching Cross, the police found the prerecorded bills and cocaine base mixed with marijuana in the partially-smoked cigarette Cross was holding in his hand.
The jury convicted Cross of possession of cocaine base on May 25, and sale of cocaine base and possession of cocaine base for sale on November 8.
DISCUSSION
I. Denial of Batson/Wheeler Motion
Cross contends his constitutional right to a jury drawn from a fair cross-section of the community was violated because the trial court denied his Batson/Wheeler motion based on the prosecutor's peremptory excusal of an African-American juror.
Background
During the voir dire proceedings, there were two African-American individuals among the prospective jurors, a man and a woman. During voir dire by the court and defense counsel, the African-American male (C. D.) stated that he was a retired Naval officer and he now worked as a private correctional officer with a contract company. He stated that in his work as a correctional officer, he came into contact with people charged with a crime, but he did not think it would affect his ability to be an impartial juror. During his Navy career, he served at court martial proceedings, which were similar to criminal trials and which he thought would help him in the current case.
During the prosecution's voir dire of C. D., the prosecutor asked him to describe his duties as a correctional officer in more detail. C.D. responded that he transported prisoners, patted them down, and stripped them. When asked if he could be a good juror, C. D. stated that he was a person of integrity who could listen to both sides and come out with a reasonable explanation. He acknowledged that he had the opportunity to talk to people accused of crimes every day. When the prosecutor asked if he talked to them "about their cases and... what kind of evidence is available in their cases," he responded, "All the time." The prosecutor asked if having that kind of information might make it difficult for him to be impartial, and he responded, "Not at all." The prosecutor asked C. D. if there was anything that bothered him about undercover officers, and he responded, "It's a good thing as far as I'm concerned. I know they are protecting our streets. That's what they are there for. That's what they should be doing."
Thereafter, the prosecutor exercised a peremptory challenge to excuse C. D. Defense counsel made a Batson/Wheeler motion asserting the prosecutor was removing C. D. on the basis of race. The trial court offered the prosecutor an opportunity to respond. The prosecutor explained that she exercised the preemptory challenge based on C. D.'s failure to make eye contact; his demeanor reflecting "a little bit" of anger and that he was "not overly happy to be here"; and his profession as a correctional officer. To support his claim of discrimination, defense counsel asserted that C. D. was comparable to other jurors who had not been excused, and noted that C. D. was a retired Naval officer who now worked as a correctional officer, he had stated his approval of undercover officers, and there were only two African-Americans among the prospective jurors and one of them had now been excused.
The prosecutor stated: "[W]atching [C. D.] over the last couple of days, he does not make eye contact. His answers, he seemed a little bit angry or not overly happy to be here. [¶] I passed him outside today, we actually walked towards one another on the street, and he quickly looked away, didn't make eye contact. And I understand the court's admonishment that they are not to speak to us, but I had a general feeling overall that he is not interested in being here. The nature of his profession working as a correctional officer is not preferable for me...."
Evaluating the Batson/Wheeler motion, the trial court noted that in addition to the one remaining African-American prospective juror, there were some prospective jurors that appeared to be of Hispanic descent, and the remaining prospective jurors appeared to be of "European" descent. The court stated that in its view C. D. appeared to be a "fairly objective prospective juror," and it did not note anything that was "peculiar" about him in regard to either the defense or the prosecution. However, the court stated it was "not sure a prima facie case has been shown that he had been stricken because of his race." The court then concluded it was "not prepared to say [the prosecutor] has stricken him because of his race," explaining: "[T]he nature of his employment can be such that he may empathize with prisoners. Certainly, there may be other factors other than his race. But I accept [the prosecutor's] explanation notwithstanding and I am satisfied by a preponderance of the evidence at this point that this is not exercised based upon race. So I would deny the Batson motion at this time."
Governing Legal Principles
A prosecutor's use of a peremptory challenge to strike a prospective juror on the basis of group bias violates the federal and state Constitutions. (People v. Lewis (2008) 43 Cal.4th 415, 469.) Although a prosecutor's striking of most or all members of an identified group can be indicative of discriminatory purpose, the defendant need not establish a pattern of discrimination to show a violation of his or her constitutional rights. (People v. Avila (2006) 38 Cal.4th 491, 553; People v. Reynoso (2003) 31 Cal.4th 903, 914.) The dismissal of even one juror for a discriminatory reason is unconstitutional. (People v. Bell (2007) 40 Cal.4th 582, 598, & fn. 3; People v. Huggins (2006) 38 Cal.4th 175, 227.)
When a defendant objects to the prosecutor's peremptory challenge as discriminatory, the trial court uses a three-step procedure to evaluate the issue. First, the defendant must make a prima facie showing that the totality of relevant facts gives rise to an inference of discriminatory purpose. Second, if there is a prima facie showing, the burden shifts to the prosecutor to offer a nondiscriminatory justification for the strike. Third, if a nondiscriminatory explanation is presented, the trial court must then decide whether the defendant has proved purposeful discrimination. (Johnson v. California (2005) 545 U.S. 162, 168; People v. Lewis, supra, 43 Cal.4th at p. 469.) At the third step, the defendant carries the burden of persuasion to prove the existence of purposeful discrimination. (Johnson, supra, 545 U.S. at pp. 170-171.)
To make a prima facie showing, the defendant need only produce evidence sufficient to permit a trial court to draw an inference that discrimination has occurred. (People v. Cornwell (2005) 37 Cal.4th 50, 67, disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) If the defendant makes a prima facie showing, the trial court should not speculate about the prosecutor's reasons for the challenge, but should require that the prosecutor provide an explanation. (Cornwell, supra, at pp. 73-74.) The prosecutor's justification for the peremptory challenge need not rise to the level of a challenge for cause, and even a trivial reason or hunch, if genuine and neutral, may suffice. (People v. Lenix (2008) 44 Cal.4th 602, 613.) For example, a trial court may credit a prosecutor's claim of a nondiscriminatory motive based on a juror's body language or manner of answering questions. (People v. Reynoso, supra, 31 Cal.4th at p. 917.)
When deciding whether the defendant has shown purposeful discrimination, the trial court must "assess the plausibility of [the prosecutor's] reason in light of all evidence with a bearing on it." (Miller-El v. Dretke (2005) 545 U.S. 231, 252; People v. Lewis, supra, 43 Cal.4th at p. 469.) The trial court must make a sincere and reasoned attempt to evaluate the prosecutor's explanation in light of the circumstances of the case, its knowledge of trial techniques, and its observation of the manner in which the prosecutor has examined the prospective jurors and exercised challenges. (People v. Reynoso, supra, 31 Cal.4th at p. 919.) The trial court's inquiry focuses on whether the prosecutor's reasons are sincere and legitimate, or whether they are "implausible or fantastic justifications" serving as pretexts for purposeful discrimination. (Id. at pp. 916, 924; People v. Huggins, supra, 38 Cal.4th at p. 227.)
The trial court's findings on purposeful discrimination turn largely on credibility, and on appeal we review the court's ruling for substantial evidence. (People v. Lenix, supra, 44 Cal.4th at pp. 613-614.) " 'We presume that a prosecutor uses peremptory challenges in a constitutional manner and give great deference to the trial court's ability to distinguish bona fide reasons from sham excuses.... So long as the trial court makes a sincere and reasoned effort to evaluate the nondiscriminatory justifications offered, its conclusions are entitled to deference on appeal.' " (Ibid.)
Analysis
Preliminarily, we note the Attorney General construes the record as showing the trial court ruled no prima facie showing had been made and did not reach the second and third steps of the three-step analysis. Although the trial court initially stated it was "not sure" Cross had satisfied his threshold burden to present a prima facie showing of discrimination, when denying the Batson/Wheeler motion the court further stated it was "accept[ing] [the prosecutor's] explanation" for the challenged peremptory excusal of the juror and was persuaded the excusal was not based on race. Given the court's statement indicating its reliance on the prosecutor's explanation and its resolution of the ultimate question of discrimination, the issue of whether Cross made a prima facie showing is moot. (See People v. Lewis, supra, 43 Cal.4th at p. 471.) Accordingly, we evaluate whether the record supports the court's ruling that the prosecution's explanation was credible and not a pretext for discrimination.
The Attorney General argues that we should affirm the trial court's ruling if the record on appeal " ' "suggests grounds upon which the prosecutor might reasonably have challenged" the jurors in question.' " (See People v. Mayfield (1997) 14 Cal.4th 668, 723.) Under current United States Supreme Court law, this standard is no longer accurate. (See Johnson v. California, supra, 545 U.S. at p. 168 [2005 decision overruling California Supreme Court's formulation of " 'more likely than not' " standard for prima facie showing requirement].) When evaluating a ruling that no prima facie case was shown, the inquiry is whether substantial evidence supports the finding that the defendant did not present evidence sufficient to permit the trial court to draw an inference of discrimination. (See id. at pp. 165-170; People v. Avila, supra, 38 Cal.4th at p. 553; People v. Huggins, supra, 38 Cal.4th at p. 228, fn. 13.) When evaluating a ruling that the defendant did not show the prosecutor's reasons were a pretext for discrimination, the inquiry is whether substantial evidence supports the finding that the nondiscriminatory reasons were plausible. (See Johnson v. California, supra, 545 U.S. at pp. 172-173; People v. Cornwell, supra, 37 Cal.4th at p. 73 [once prima facie case shown, trial court should not speculate about prosecutor's reasons]; People v. Lenix, supra, 44 Cal.4th at pp. 613-614.)
The record supports the trial court's finding that the prosecutor could legitimately view C. D.'s occupation as a factor potentially favoring the defense. In response to the prosecutor's questions, C. D. revealed that in his role as a correctional officer he frequently speaks with inmates about their cases and the evidence that is available in their cases. The trial court could reasonably conclude that this type of close, personal interaction could support a view that C. D. had developed empathy for inmates. We are not persuaded by Cross's contention that the prosecutor's citation to C. D.'s employment necessarily showed a pretextual explanation because correctional officers are generally viewed as favorable to the prosecution. Notwithstanding C. D.'s employment in a field typically seen as favorable to the prosecution, his statement that he speaks with inmates about their cases "[a]ll the time" was sufficient to support the trial court's crediting of the prosecutor's view that C. D. might be more sympathetic to inmates than to the prosecution.
Cross argues that we should disregard the trial court's statement that C. D. might empathize with prisoners because the prosecutor did not expressly articulate this reason. The contention is unavailing. The trial court was aware of the entire voir dire proceedings, during which the prosecutor elicited the information about C. D.'s frequent conversations with inmates. From this, the trial court could reasonably surmise that the prosecutor's statement that a correctional officer occupation was "not preferable" meant the prosecutor viewed a correctional officer as potentially more sympathetic to the defense because frequent conversations with inmates could give rise to empathy.
Using a comparative analysis approach, Cross asserts that the pretextual nature of the prosecutor's reason is shown by the fact that a non-African-American prospective juror (C. T.) also worked in law enforcement and yet was retained as a juror by the prosecutor. Comparative analysis is used to ascertain whether a prosecutor's proffered reason for striking a juror is pretextual because a proffered reason applies equally to a retained juror who is not a member of the identified group. (People v. Lewis, supra, 43 Cal.4th at p. 472; People v. Lenix, supra, 44 Cal.4th at pp. 621-622.) C. T. stated that he was a retired school employee who had spent nine years in the San Diego police department's senior volunteer patrol program. His duties, which gave him a lot of contact with police officers, included dusting for fingerprints at automobile break-ins, patrolling parking lots, checking banks, giving tickets for disabled parking violations, and directing traffic at accident sites. There is nothing in C. T.'s responses reflecting a close interaction with inmates akin to C. D.'s description of his frequent discussion with inmates about their cases. A comparison between C. D. and C. T. does not compel a finding of discriminatory purpose.
C. T. was ultimately excused from the jury by the defense.
The trial court's assessment that the prosecutor genuinely excused C. D. based on his occupation is further supported by the fact that the prosecutor excused another prospective juror (B. H., who apparently is not African-American) who worked as a correctional officer. B. H. stated that he was a correctional deputy and probation officer who worked at detention facilities for juveniles, where the focus of the work is on rehabilitating the juveniles. The prosecutor asked B. H. if he understood that in his role as a juror he was not to consider punishment or rehabilitation but to decide whether the case has been proven, and asked if he could put aside what he did everyday and step into a different role. B. H. answered both questions affirmatively. The fact that the prosecutor excused B. H. supports that she sincerely perceived prospective jurors who worked in a correctional role as potentially less sympathetic to the prosecution.
The trial court was also entitled to credit the prosecutor's claim that she perceived C. D.'s lack of eye contact and demeanor as reflecting some level of hostility and unwillingness to serve. Although the trial court stated it perceived C. D. as an impartial juror, the court did not say anything to suggest it believed the prosecutor's contrary perceptions were implausible. Drawing all inferences in favor of the court's ruling, we assume the trial court did not discredit the prosecutor's perception. And as a reviewing court evaluating a written record, we defer to the trial court's assessment of the credibility of the prosecutor's claim concerning the prospective juror's demeanor.
Cross asserts that our review of the prosecutor's reasons should be confined to her statement regarding C. D.'s employment as a correctional officer, because the trial court did not cite the prosecutor's references to his demeanor and body language when ruling on the motion. Even if we construe the trial court's ruling in this narrow fashion, as stated, the record supports the trial court's denial of the motion based on its finding that the prosecutor's reliance on C. D.'s employment was a legitimate, nondiscriminatory reason for the peremptory excusal. Moreover, even though the trial court did not share the prosecutor's assessment of C. D.'s demeanor, the court did not construe the prosecutor's explanation regarding demeanor as reflecting an attempt to cover up a discriminatory motive, and there is nothing in the record that compels such a conclusion.
Cross also contends that the prosecutor's discriminatory purpose is shown by her failure to ask C. D. any questions about his purported reluctance to serve on the jury. (See People v. Lewis, supra, 43 Cal.4th at p. 476 [failure to engage stricken juror in meaningful voir dire about topic identified as important may reflect discriminatory purpose].) Although the prosecutor did not question C. D. on this issue, she did ask additional questions about his work as a correctional officer. This is not a case where the prosecutor engaged in nothing more than perfunctory questioning of a juror prior to peremptory dismissal. (See People v. Bell, supra, 40 Cal.4th at p. 597 [failure to engage in more than desultory voir dire may reflect discriminatory motive].) Further, the prosecutor's identification of C. D.'s reluctance to serve was premised on the prosecutor's subjective perceptions concerning demeanor, and thus was not the type of topic that must necessarily be addressed through specific questioning. The trial court was not required to conclude that the prosecutor could not legitimately excuse C. D. from the jury without examining him about her perceptions of his demeanor.
The record supports the trial court's denial of Cross's Batson/Wheeler motion.
II. Substantial Evidence of Possession of Cocaine Base for Sale
Cross's challenge to the sufficiency of the evidence is confined to the November 8 offense. He does not dispute that the record supports that he sold cocaine base, but contends it does not support that he possessed the single piece of rock cocaine involved in the transaction with the intent to sell it. He asserts that the record shows the November 8 transaction was nothing more "than an impulsive sale of a drug possessed for personal use."
In evaluating a challenge to the sufficiency of the evidence, we review the whole record in the light most favorable to the judgment to determine whether there is substantial evidence from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Kraft (2000) 23 Cal.4th 978, 1053.) We presume in support of the judgment the existence of every fact the jury could reasonably deduce from the evidence. (Ibid.) If the circumstances reasonably justify the jury's findings, reversal is not warranted merely because the circumstances might also be reasonably reconciled with a contrary finding. (Id. at p. 1054.)
To support a conviction of possession of a controlled substance for sale, the defendant must have possessed the contraband with the intent of selling it. (People v. Harris (2000) 83 Cal.App.4th 371, 374.) Because intent is inherently difficult to prove by direct evidence, intent may properly be inferred from the act itself together with its surrounding circumstances. (See People v. Smith (1998) 64 Cal.App.4th 1458, 1469.) The evidence showing that Cross did actually sell drugs to the undercover officer provided strong circumstantial evidence from which the jury could infer that he possessed the drugs with the intent to sell them. Even if Cross would have used the piece of cocaine base for himself had he not sold it, the jury could reasonably deduce that he intended to sell it if the opportunity arose because he did in fact sell it to Officer Zaldivar. The inference that Cross had the intent to sell while possessing the drugs is further supported by the evidence that he asked Zaldivar if he was a police officer, which suggested that he was aware that he was about to engage in an illegal sales transaction. Additionally, the evidence that Cross charged Zaldivar $20 for a $10 piece of rock cocaine supports an inference that he wanted to make an extra profit from a sales transaction.
To support his claim that the prosecution did not prove he possessed the drugs with intent to sell, Cross notes that he was not found in possession of any indicia of sales, such as pay-and-owe sheets, weighing scales, packaging material, or weapons. The jury was not required to conclude that the absence of these implements defeated the inference of intent to sell. Notably, law enforcement witnesses called by the prosecution testified that in "hand-to-hand" sales of cocaine base on the streets, the sellers are often also users of the drug; they usually sell small amounts of the drug and do not have large amounts of cash with them; they typically do not use the pay-and-owe sheets or scales used by more sophisticated dealers; and they frequently sell the drugs in unpackaged form. This testimony supports that Cross possessed the drugs with intent to sell even though the evidence did not show he was a sophisticated drug dealer.
DISPOSITION
The judgment is affirmed.
WE CONCUR: McCONNELL, P. J., AARON, J.