Opinion
G062521
05-08-2024
THE PEOPLE, Plaintiff and Respondent, v. MARTIN RAMIREZ DOMINGUEZ, Defendant and Appellant.
Mi Kim, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Eric A. Swenson and Christine Y. Friedman, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Riverside County, No. RIF1905045 Jeffrey Prevost, Judge. (Retired Judge of the Riverside Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Reversed.
Mi Kim, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Eric A. Swenson and Christine Y. Friedman, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
O'LEARY, P. J.
Martin Ramirez Dominguez appeals from a judgment after a jury convicted him of seven counts of sexually abusing C.C., a female family member. Relying on Code of Civil Procedure section 231.7 (section 231.7), Dominguez argues the trial court erred by overruling his objections to the prosecutor's peremptory challenges to two jurors. We agree as to one juror, and thus, need not address his claim as to the other juror. We reverse the judgment.
FACTS
Dominguez's uncle is C.C.'s stepfather. Dominguez and C.C. are Hispanic. The prosecution presented evidence that Dominguez sexually abused C.C. for several years and expert testimony concerning child sexual abuse accommodation syndrome. Dominguez offered evidence as to his good character and expert testimony that he was not a pedophile.
The jury convicted Dominguez of seven counts of lewd and lascivious acts on a child under 14 years old (Pen. Code, § 288, subd. (a)). The trial court sentenced Dominguez to 16 years in prison.
DISCUSSION
Dominguez's sole contention on appeal is that the trial court erred by overruling his objections to the prosecutor's peremptory challenges to prospective jurors E.C., a Hispanic male, and R.D., a Filipino male. Because we conclude the court erred by overruling his objection as to E.C., we need not address his contention as to R.D. I. Background
In his juror questionnaire, E.C. stated he was a 26-year-old Hispanic male. He spoke English (as a non-native speaker) and Spanish. In his written responses, E.C. indicated the following: there was nothing that would prevent or substantially impair his ability to follow the trial court's instructions on the law; he was "willing to try and resolve conflicts in the evidence and decide which witnesses should and should not be believed"; and he could be a fair and impartial juror to both sides. Additionally, he could follow the instruction "that the testimony of only one witness, if [he] believe[d] them to be telling [him] the truth, can prove a fact."
During voir dire, the prosecutor explained, "[T]he law provides that one witness can prove to you any fact beyond a reasonable doubt, so long as you believe that witness to be telling you the truth." The prosecutor asked prospective juror L.S. for her thoughts on that legal principle. L.S. asked the prosecutor to rephrase the principle. When L.S. tried to restate the principle, the prosecutor said, "I see. It's confusing." L.S. agreed. The prosecutor offered an example of an assailant who robbed and assaulted an elderly woman and the woman testified at trial. The prosecutor asked L.S. to assume she believed the woman and restated the principle that the woman's testimony "alone can prove to you what happened . . . beyond a reasonable doubt." L.S. answered, "I believe there needs to be more evidence, other than just he said/she said." When the prosecutor asked L.S. whether she would struggle to abide by that instruction, L.S. said, "No," and she would be able to follow the rule.
The prosecutor asked prospective juror TJ01 what he thought about the single-witness rule. TJ01 first stated he needed "clarification on the law" and then restated the principle. The prosecutor confirmed that one witness, if believed, could satisfy the beyond-a-reasonable-doubt standard. TJ01 stated he could abide by the instruction.
The prosecutor asked, "Is there anybody of our 18 prospective jurors in our panel that would struggle or would have some sort of expectation that something more would be required, even being read the law that says one witness is enough?" The record reflects the prospective jurors responded in the negative.
The prosecutor asked E.C. his thoughts. E.C. responded, "I don't know. I was kind of like -- like [L.S.] said, she said/he said. Like, I kind of, like, need proof or, like -- [¶] I don't know. It just kind of like -- it kind of threw me off." (Italics added.) The prosecutor asked whether he would struggle with the single-witness instruction. E.C. stated the following: "Not really, but just new to me. Like, you know, I never heard that before, like -- [¶] It's like if I -- if I say something, then -- and they believe me, I could be lying, but -- you know? [¶] That's what I'm thinking. I always think about something else, the worst, I guess you could say."
The Attorney General asserts that when the prosecutor asked the question, E.C. "apparently" raised his hand, demonstrating he would expect more than one witness's testimony. That is not borne out by the record. It is equally plausible the prosecutor cold called on E.C., who was sitting in the back.
The prosecutor switched topics and discussed how no trial or witness is perfect. The prosecutor asked E.C. the following: "Let's say someone ran in here and they came up to me and they stabbed me through the chest and I fell to the ground. Do you think that your perspective of what just occurred would be the exact same as someone all the way back in the far corner of the courtroom?" E.C. replied: "I would say yes and no, just because I see you -- my first thing, and they see you in the back, so everybody has, like, a different side." E.C. agreed with the prosecutor that the witnesses would have different perspectives and might describe the incident differently but added there would be similarities.
A little later, the prosecutor exercised her first peremptory challenge on E.C. Dominguez's counsel objected under Batson/Wheeler and section 231.7, subdivision (c). Counsel noted that E.C. identified himself as Hispanic, and Dominguez was Latino and spoke only Spanish. Counsel argued there was nothing in his questionnaire that indicated he would favor one side or the other. Counsel also asserted the prosecutor's single-witness hypothetical was incomplete. Counsel opined the only justification for the prosecutor's peremptory challenge was E.C.'s race. The court found E.C. was a member of a cognizable group under section 231.7.
Batson v. Kentucky (1986) 476 U.S. 79 (Batson); People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler).
The prosecutor denied that she exercised the peremptory challenge against E.C. based on his Hispanic heritage. The prosecutor noted there were six Hispanic people on the panel who she was not going to challenge.
The prosecutor explained that she exercised the peremptory challenge against E.C. because of his response to the single-witness hypothetical. The prosecutor acknowledged her hypothetical could have been "flushed out a bit more," but she noted E.C. "indicated that he would want to know more, that he always overthinks things, that he believe[d] that people can lie, which is certainly the case." She added that E.C.'s responses gave her the impression that despite the single-witness instruction, "he would always require more, even if, let's say, he was not going to be forthcoming and indicate that explicitly in response to questioning."
The prosecutor also "note[d] for the record" E.C. had been "slouched down" and had his chin on his hand. She noted E.C. "perked up" when asked a question but "between the responses and his body language in court presented a concern for his level of engagement during the trial or during the deliberations process." The prosecutor added the following: "And while I note that his body language while in court or demeanor is one of the factors that are considered under [section] 231.7, it is not considered presumably invalid. Rather, it can be considered acceptable should it be confirmed by [the c]ourt or counsel."
The trial court stated it could not make a comparative analysis because this was the prosecution's first peremptory challenge. The court confirmed E.C. was "slouched down for the most part of the examination by both counsel." The court, however, stated it was difficult to say why E.C. was slouching down whether because he wanted to be somewhere else, was disinterested, or was "naturally a slacker." The court opined E.C.'s body language was "a thin reed . . . to base a finding adverse to the [objection]." The court added body language was "a legitimate consideration to take into account but . . . not sure that it necessarily overcomes the factors that are enumerated by the [L]egislature with respect to impermissible bases" for excusing a juror. The court agreed E.C. had difficulty with the single-witness hypothetical but also agreed that the hypothetical was somewhat incomplete with respect to the considerations that come into play in evaluating the testimony of a single witness. Finally, the court noted E.C. stated he would be an impartial juror.
After the trial court confirmed E.C. was "slouched down," the prosecutor cited to section 231.7, subdivision (d), as including different factors the court may consider in ruling (§ 231.7, subd. (d)(3)). The prosecutor discussed several of the factors.
The trial court mused it was "having some problems" because this was its first section 231.7 objection and an erroneous ruling was prejudicial error so it did not "want to make a wrong call here." After the court noted C.C. was the same ethnicity as Dominguez and race was not a factor in the case, it concluded there was no substantial likelihood that an objectively reasonable person would view E.C.'s Hispanic ethnicity as a factor in the prosecutor's peremptory challenge. The court opined E.C. gave "somewhat equivocal answers" to the prosecutor's questions regarding the single-witness instruction. But the court "qualif[ied]" that by observing the prosecutor's question did not include all the factors jurors are to consider, which makes it "difficult" for prospective jurors to respond. The court again confirmed E.C. was slouched down during the majority of his testimony to both counsel and during the questioning of other prospective jurors, "suggesting . . . that he had a disinterest in being present for these proceedings." The court added that its impression of E.C.'s responses overall was that E.C. would remain an impartial juror. Nevertheless, the court denied Dominguez's objections under section 231.7 and Batson/Wheeler.
II. Law and Analysis
Peremptory challenges are designed to be used for any permissible reason or no reason at all. (People v. Smith (2018) 4 Cal.5th 1134, 1146.) But a party may not use a peremptory challenge to exclude prospective jurors based on group bias. (People v. Armstrong (2019) 6 Cal.5th 735, 765.)
The prosecution's use of peremptory challenges to remove prospective jurors based on group bias, such as race or ethnicity, violates a defendant's right to trial by "a jury drawn from a representative cross-section of the community under article I, section 16 of the California Constitution, and his right to equal protection under the Fourteenth Amendment to the United States Constitution." (People v. Armstrong, supra, 6 Cal.5th at pp. 765-766.) Section 231.7 now codifies that principle and provides that "[a] party shall not use a peremptory challenge to remove a prospective juror on the basis of the prospective juror's race, ethnicity, gender, gender identity, sexual orientation, national origin, or religious affiliation, or the perceived membership of the prospective juror in any of those groups." (§ 231.7, subd. (a).)
For criminal jury trials after January 1, 2022, section 231.7 sets forth the procedure that a trial court must follow when a party objects to the improper use of a peremptory challenge under subdivision (a). (§ 231.7, subds. (b), (c), (d), (i), (k).) When a party objects to the use of a peremptory challenge under this statute, "the party exercising the peremptory challenge shall state the reasons the peremptory challenge has been exercised." (§ 231.7, subd. (c).)
Section 231.7, subdivision (d)(1), provides the trial court with a standard to make its determination. It provides as follows: "The court shall evaluate the reasons given to justify the peremptory challenge in light of the totality of the circumstances. The court shall consider only the reasons actually given and shall not speculate on, or assume the existence of, other possible justifications for the use of the peremptory challenge. If the court determines there is a substantial likelihood that an objectively reasonable person would view race, ethnicity, gender, gender identity, sexual orientation, national origin, or religious affiliation, or perceived membership in any of those groups, as a factor in the use of the peremptory challenge, then the objection shall be sustained. The court need not find purposeful discrimination to sustain the objection." (§ 231.7, subd. (d)(1).) Section 231.7, subdivision (d)(2), defines several key terms-objectively reasonable person, substantial likelihood, and unconscious bias. Section 231.7, subdivision (d)(3), provides a nonexhaustive list of circumstances the court may consider. "The court shall explain the reasons for its ruling on the record." (§ 231.7, subd. (d)(1).)
Section 231.7, subdivision (g)(1), identifies the following three "reasons for peremptory challenges" that "have historically been associated with improper discrimination in jury selection": "The prospective juror was inattentive, or staring or failing to make eye contact"; "The prospective juror exhibited either a lack of rapport or problematic attitude, body language, or demeanor"; and "The prospective juror provided unintelligent or confused answers." Section 231.7, subdivision (g)(2), provides as follows: "The [three] reasons . . . are presumptively invalid unless the trial court is able to confirm that the asserted behavior occurred, based on the court's own observations or the observations of counsel for the objecting party. Even with that confirmation, the counsel offering the reason shall explain why the asserted demeanor, behavior, or manner in which the prospective juror answered questions matters to the case to be tried."
We review de novo the overruling of an objection made under section 231.7, "with the trial court's express factual findings reviewed for substantial evidence." (§ 231.7, subd. (j).) We do "not impute to the trial court any findings, including findings of a prospective juror's demeanor, that the trial court did not expressly state on the record." (Ibid.) We consider only those reasons actually given by the court and do "not speculate as to or consider reasons that were not given to explain either the party's use of the peremptory challenge or the party's failure to challenge similarly situated jurors who are not members of the same cognizable group as the challenged juror, regardless of whether the moving party made a comparative analysis argument in the trial court." (Ibid.) If we conclude the court erred by overruling an objection, "that error shall be deemed prejudicial, the judgment shall be reversed, and the case remanded for a new trial." (Ibid.)
Here, the trial court erred by overruling Dominguez's objection to the prosecutor's peremptory challenge of E.C. Section 231.7, subdivision (j), mandates that we consider only the reasons the prosecutor gave for exercising the peremptory challenge. We address the two reasons in turn.
A. E.C.'s Responses Regarding the Single-Witness Instruction
The inability or reluctance to follow the single-witness instruction is a permissible reason for a peremptory challenge. (People v. Bryant (2019) 40 Cal.App.5th 525, 540-542 (Bryant); People v. Smith (2019) 32 Cal.App.5th 860, 873-874 (Smith).) However, when E.C.'s statements are considered in their entirety, we cannot conclude they established an inability, reluctance, or refusal to follow the single-witness instruction.
In his juror questionnaire, E.C. stated he could follow the single-witness instruction. When considered in context, E.C.'s statements during voir dire were not "somewhat equivocal." After the prosecutor questioned L.S. and TJ01, she asked E.C. his thoughts on the single-witness instruction. E.C. referred to L.S.'s "she said/he said" answer and said, "I kind of, like, need proof or, like .... [¶] . . . It just kind of like -- it kind of threw me off." When the prosecutor asked E.C. whether he would struggle with the instruction, he replied: "Not really, but just new to me. Like, you know, I never heard that before ...." E.C. added the witness could be lying, and he always thinks the worst. E.C.'s responses do not reveal an inability, reluctance, or refusal to follow the law. Instead, they demonstrate E.C. was unaware that the law permits a single witness's testimony to support a conviction. When the prosecutor asked E.C. whether he would have difficulty with the instruction, E.C. said it was new to him but he would not have difficulty. E.C.'s response that he could follow the instruction confirmed his response in his juror questionnaire that he could follow the single-witness instruction. It also confirmed his response in his juror questionnaire that there was nothing that would prevent or substantially impair his ability to follow the court's instructions.
Similar to E.C., both L.S. and TJ01 were confused by the prosecutor's recitation of the law and her questions. Both the prosecutor and the trial court acknowledged the prosecutor could have been clearer. And despite TJ01's request for clarification of the law, the prosecutor did not exercise a peremptory challenge against this juror who ended up serving on the jury. TJ01 was a middle aged Caucasian male. Like Dominguez, E.C. was a Hispanic male. In different words, all three prospective jurors said they could follow the single-witness instruction. But the prosecutor exercised a peremptory challenge against the one juror who shared Dominguez's race/ethnicity.
Bryant, supra, 40 Cal.App.5th 525, and Smith, supra, 32 Cal.App.5th 860, illustrate situations where a prospective juror demonstrates an inability, reluctance, or refusal to follow the single-witness instruction. In Bryant, supra, 40 Cal.App.5th at page 541, the prospective juror said he would "'attempt'" to follow the instruction if he believed the witness "'strongly.'" In Smith, supra, 32 Cal.App.5th at page 873, the prospective juror said he would "'definitely have challenges'" and "'have a lot of trouble with'" convicting someone in a he said/she said case. Here, unlike in Bryant and Smith, E.C.'s responses when considered in their entirety did not demonstrate a reluctance or refusal to follow the single-witness instruction. They demonstrated he was unaware of the legal principle but that he could follow it. The trial court's conclusion that E.C. gave "somewhat equivocal answers" concerning the single-witness instruction and thus impliedly could not follow the law was not a valid basis for the prosecutor to challenge him.
B. E.C.'s Body Language
Body language can be a valid basis for challenging a prospective juror. (See People v. Lenix (2008) 44 Cal.4th 602, 622; People v. Reynoso (2003) 31 Cal.4th 903, 917.) But in enacting section 231.7, the Legislature identified body language as a historically suspect reason for challenging jurors. That statute requires the trial court to confirm the behavior and a showing that it "matters to the case to be tried." (§ 231.7, subd. (g)(2).)
In People v. Ortiz (2023) 96 Cal.App.5th 768, 794 (Ortiz), the court interpreted section 231.7, subdivision (g)(2), to require "a two-step process." The court explained that process as follows: "We will call the first step the 'confirmation requirement.' If a reason given by the party exercising the challenge falls within the presumptively invalid reasons listed in [section 231.7,] subdivision (g)(1)(A)-(C), the trial court must make a finding on whether the asserted behavior occurred. If the court confirms that the asserted behavior occurred, then the party exercising the peremptory challenge must satisfy what we will call the 'explanation requirement.' In this step, the party must explain why that behavior 'matters to the case to be tried.' [Citation.]" (Ortiz, supra, 96 Cal.App.5th at p. 794.)
The prosecutor also challenged E.C. because of his body language-he was "slouched down" with his chin on his hand. She explained his body language "presented a concern for his level of engagement." The trial court confirmed E.C. was slouched down during the majority of his testimony to both counsel and during the questioning of other prospective jurors. The trial court then made various statements that were at odds. The court stated it could not say why E.C. was slouched down, i.e., whether he was disinterested or in his normal posture. The court acknowledged that it was "a thin reed" to deny the objection. But after stating it was a legitimate consideration, the court then opined it was not sure it was proper under section 231.7. The court ultimately ruled that E.C.'s body language established he was disinterested and it was a valid reason for the prosecutor to exercise a peremptory challenge.
As to the first step, substantial evidence supports the confirmation requirement. The prosecutor asserted and the trial court confirmed E.C. was slouched down during voir dire. With respect to the second step, the prosecutor offered an explanation, E.C.'s body language demonstrated he was not engaged. The Ortiz court explained we do not review the explanation requirement for substantial evidence. (Ortiz, supra, 96 Cal.App.5th at p. 804.) "We only determine whether any explanation was in fact provided by the prosecutor." (Ibid.) The prosecutor did provide an explanation. But the prosecutor's explanation, lack of engagement, i.e., inattentiveness, is another reason the Legislature identified as one "historically . . . associated with improper discrimination in jury selection." (§ 231.7, subd. (g)(1)(A).)
Although we do not review the prosecutor's explanation for substantial evidence, we may consider the substance of the prosecutor's explanation in our de novo review of the trial court's denial of an objection. (Ortiz, supra, 96 Cal.App.5th at p. 804.) The court's comments indicate it was skeptical that E.C.'s body language was a valid reason for exercising a peremptory challenge, but the court ultimately agreed it supported the conclusion that E.C. was disinterested. Based on the record before us, we cannot agree.
First, E.C.'s responses to the prosecutor's questions showed he was engaged in the process. He candidly acknowledged he was unaware of the single-witness instruction, shared his belief a person can lie and can be believed, and explained how eyewitnesses viewing an event from different sides have different but similar perspectives. Second, E.C. was attentive to the prosecutor's questioning of the other jurors who she questioned about the single-witness instruction before him. For example, when the prosecutor asked L.S. about the single-witness instruction, L.S. initially responded, "I believe there needs to be more evidence, other than just he said/she said." When the prosecutor later asked E.C. essentially the same question, E.C. responded that they need proof "like [L.S.] said, she said/he said." (Italics added.) This evidence shows someone who was involved in the process, not someone who was inattentive.
As the trial court properly noted, it could not make a comparative analysis because this was the prosecution's first peremptory challenge. The fact there were other Hispanic prospective jurors is not relevant to whether the prosecutor exercised her first peremptory challenge against E.C. because he was Hispanic.
We are without a permissible reason for the prosecutor's peremptory challenge of E.C. An objectively reasonable person could view race or ethnicity as a factor in the prosecutor's use of the peremptory challenge against him. In reaching this conclusion, we need not, and do not, determine whether the prosecutor was motivated by bias. The Legislature intended section 231.7 to "be broadly construed to further the purpose of eliminating the use of group stereotypes and discrimination, whether based on conscious or unconscious bias, in the exercise of peremptory challenges." (Stats. 2020, ch. 318, § 1, subd. (c).) The Legislature sought to remedy both "purposeful discrimination" and implicit unconscious bias. (§ 231.7, subd. (d)(1), (2)(A) &(C).)
Based on the foregoing, we conclude the trial court erred by overruling Dominguez's objection to the prosecutor's peremptory challenge against E.C. Section 231.7, subdivision (j), states that if an appellate court concludes the trial court erred by overruling an objection, there is only one remedy-reversal. (Ibid. ["Should the appellate court determine that the objection was erroneously denied, that error shall be deemed prejudicial, the judgment shall be reversed, and the case remanded for a new trial"].) Because the court erred, prejudice is presumed, and we must reverse. The matter is remanded for retrial. (Burks v. United States (1978) 437 U.S. 1, 14 [retrial is allowed "to rectify trial error"].)
DISPOSITION
The judgment is reversed and the matter is remanded for retrial.
WE CONCUR: GOETHALS, J., SANCHEZ, J.