Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County. Craig Riemer, Judge. Affirmed Super.Ct.No. RIF120054
Carol E. Lavacot, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, and Randall Einhorn and Lynne G. McGinnis, Deputy Attorneys General, for Plaintiff and Respondent.
King J.
I. INTRODUCTION
Defendant was charged in an amended information with two counts of resisting arrest by force or violence, a felony (Pen. Code, § 69; counts 1 & 2), unlawfully entering real property and a structure without the consent of the owner, a misdemeanor (Pen. Code, § 602, subd. (m); count 3), and being under the influence of methamphetamine, a misdemeanor (Health & Saf. Code, § 11550, subd. (a); count 4). At the close of the People’s case, count 3 was dismissed based on insufficient evidence. (Pen. Code, § 1118.1.) A jury found defendant guilty as charged in counts 1, 2, and 4. Defendant was sentenced to three years’ probation plus 365 days in custody.
All further statutory references are to the Penal Code unless otherwise indicated.
Defendant appeals. He contends the trial court (1) erroneously denied several Batson/Wheeler motions he made on the grounds the prosecutor excluded five prospective jurors on the basis of group bias, specifically their race, ethnicity, gender, or youthfulness, and (2) erroneously allowed three lay witnesses to opine that the officers who arrested defendant did not use excessive force in attempting to restrain him. We reject these claims and affirm the judgment.
Batson v. Kentucky (1986) 476 U.S. 79 [106 S.Ct. 1712, 90 L.Ed.2d 69] (Batson) and People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler).
II. SUMMARY OF EVIDENCE PRESENTED AT TRIAL
A. Prosecution Evidence
On September 1, 2004, Larry Rea, his sons Ryan Rea and Glen Miles, other family members, and a groundskeeper lived on a rural six-acre property on Cleveland Avenue in Riverside. There were three houses, including a duplex, a trailer, and a barn on the property. Larry and his wife lived in the main residence. Ryan and his family lived in one part of the duplex, Miles lived in the other, and the groundskeeper lived in the trailer. All of the structures were located several hundred feet from the street and down a long asphalt driveway.
Between 3:45 and 4:00 a.m., and as Miles was leaving the property to go to work, he saw defendant coming out of the barn. Miles turned on his headlights, and defendant approached Miles’s truck from the passenger side. Miles had never seen defendant before, asked him what he was doing on the property, and told him he was trespassing. Defendant was speaking in garbled language and said he was looking for someone. Miles said, “hang on. Let me get him on the phone,” and called 911.
As Miles was on the phone to 911, defendant walked away. Miles turned his truck to keep defendant in his headlights. At this point, Larry came outside and asked defendant several times who he was and what he was doing there, and told him to leave. Defendant was screaming he had been sent there and that he was there “to settle up.” Larry did not know what defendant was talking about and did not recognize him. Defendant held up a shovel he had taken from the barn and said, “Come on. . . . come get me.”
Minutes later, uniformed Riverside Police Officer Melissa Brazil arrived in her patrol car. She saw that defendant was yelling at Larry and Miles, throwing his arms in the air, and walking aggressively towards the two men. She asked defendant to step aside and speak with her, and defendant agreed. Brazil noticed that defendant was agitated, confused, sweating profusely, and speaking rapidly. His pupils were dilated and he was disoriented. His sentences were fragmented, he was not making much sense, and he was unable to answer Brazil’s questions. Based on her training and experience, Brazil concluded that defendant was under the influence of a central nervous system stimulant.
Brazil also was concerned that defendant might have a weapon, because the report she received from the dispatcher indicated he may have been setting off fireworks on the property. She asked defendant to place his hands behind his back so she could conduct a pat search for weapons. When Brazil began her search, defendant struggled. Brazil ordered him to stop moving, stop pulling away, and stop grasping at his hands. Defendant would not comply, so Brazil placed him in handcuffs.
Brazil asked defendant to walk toward her patrol car, a distance of 10 to 15 feet from where they were standing. Defendant refused to move, so Brazil had to push him to the patrol car. At this point, defendant temporarily calmed down, and Brazil told him to sit in the backseat of the patrol car. Defendant complied, but kept his left leg dangling out of the door. He ignored Brazil’s repeated commands to put his leg in the car. Brazil tried to push defendant’s upper body and leg into the car, but defendant kept resisting. Twice, defendant tried to stand up and get out of the car, and Brazil had to push him back into the backseat.
At that point, Riverside Police Officer Lonnie Battest, another uniformed officer, arrived in his patrol car. Brazil was still ordering defendant to put his left leg in her patrol car, and defendant was still refusing to comply. Brazil walked to the other side of her patrol car, opened the door, grabbed defendant by the arm, and pulled him into the car while Battest stood on the other side of the car to ensure that defendant’s entire body was inside the car. Defendant pushed Battest out of the way, got out of the patrol car, stood up, and again refused to move.
After defendant pushed past Battest, Brazil and Battest each grabbed one of defendant’s arms and yelled at him to stop resisting. Defendant began throwing his elbows and thrashing, although his arms and hands were handcuffed behind him. Defendant tried to get away by twisting back and forth, kicking his feet, and striking the officers with his shoulders. The officers then ordered defendant to get on the ground. Again, defendant did not comply. The officers tried to use a leg sweep to guide defendant safely to the ground, but were unsuccessful.
Miles and Larry, together with Ryan, who had come outside during the struggle, offered to help the officers. The officers and Ryan, Miles, and Larry pulled defendant to the ground and tried to hold him down. Defendant laughed, quoted Scripture, babbled incoherently, and kept trying to get up as the officers and the three men kept pulling him back down. Defendant kicked his legs, twisted back and forth, and tried to push up from the ground. He ignored the officers’ repeated commands to stop kicking and resisting, spat at the officers and the three men, and tried to bite them. During the struggle, he kicked Brazil in her lower legs and scratched Battest on the arm.
Brazil tried to place defendant in a carotid restraint, which would cause a short loss of consciousness without the need for additional force, but she was unable to do so. Defendant reached over, removed the digital recorder and case from Brazil’s utility belt, and unsnapped her magazine pouch. Brazil called for additional backup. The first two officers to arrive were Erich Feimer and Kevin Schroeder. Ryan, Miles, and Larry were asked to step back.
As soon as Miles released defendant’s feet, defendant began kicking again. The four officers were unable to control defendant. Feimer brought a taser, and used it as a contact taser against defendant’s neck. After the contact taser was applied, defendant continued to sing, speak, and move around. At one point, defendant laughed and said the taser was not hurting him.
A taser is a gun with two darts. Each dart has 26 volts of electricity. The taser can be used by direct contact to the suspect, which is a less intrusive method, or with a cartridge, which deploys the darts from a distance and is more painful. The taser immobilizes the suspect by making him temporarily incapable of using his arms and legs.
The officers decided their only option was to deploy the taser with the cartridge and darts. Feimer shot two darts into defendant’s back. Defendant kept moving and tried to stand up and get away from the officers. Feimer then deployed a second charge into defendant’s back. This time, defendant slowed down enough so that the officers could place him in a hobble restraint. Even after defendant was restrained, he continued to roll around on the ground.
The officers contacted paramedics, who placed defendant on a gurney and took him to Riverside Community Hospital for observation. Brazil sat in the back of the ambulance with defendant. During the ride to the hospital, defendant continued to struggle and tried to get off the gurney. Brazil had to hold defendant down until they arrived at the hospital. At the hospital, defendant had to be restrained on the gurney.
Joyce Voeltz, a licensed vocational nurse at Riverside Community Hospital, testified that defendant admitted he had resisted arrest. Voeltz spoke to defendant twice on September 3, 2004. Initially, Voeltz asked defendant whether he had any family, and he said no. Later that day, Voeltz spoke with defendant a second time after his mother came to visit him. Defendant said he might as well not have any family because his father had kicked him out of the house. Voeltz noticed the abrasions on defendant’s face, arms, and feet, and asked him why he resisted arrest. Defendant said he resisted arrest because he wanted to go to jail and change his lifestyle. He began to cry, and Voeltz comforted him.
A sample of defendant’s blood was taken shortly after he arrived at the hospital. Toxicologist Maureen Black tested the blood for the presence of controlled substances. The results showed methamphetamine at 110 nanograms per milliliter and amphetamine, a breakdown product of methamphetamine, at 21 nanograms per milliliter. This meant that defendant ingested methamphetamine within 18 hours of when his blood sample was taken.
Black testified that methamphetamine is a potent central nervous system stimulant. It produces muscle rigidity, body tremors, eyelid tremors, elevated body temperature, high blood pressure, sweating, dry mouth, a white tongue, dilated pupils, time distortion, and euphoria. The effects can last for many hours. Typical results of tests Black performed show methamphetamine levels of 200 to 250 nanograms per milliliter. Higher levels are well over 500 nanograms per milliliter.
Given a hypothetical situation based on defendant’s behavior and observable symptoms, Black opined that the person was having an appreciable effect from the methamphetamine. However, a person with a level of 110 nanograms per milliliter would not have difficulty understanding, and being aware of, his or her surroundings.
B. Defense Evidence
Defendant testified in his own defense. He was 5 feet 11 inches tall, and weighed at least 320 pounds at the time of his arrest on September 1, 2004. His defense was that he was either too high to know what he was doing or that he cooperated with all of the officers’ commands.
Beginning on August 30, 2004, and continuing through the early morning hours of September 1, he was on a methamphetamine “binge” and ingested an extremely potent form of the drug. He did not sleep and was having hallucinations. He admitted that his methamphetamine use may have affected his memory of what happened on August 31 to September 1.
During the evening of August 31, his mother came home, saw that he was behaving irrationally, and called police. The police came over, searched defendant, and left. Defendant then decided to go for a walk. He walked down the street, away from his mother’s house. He was looking for a friend who no longer lived nearby.
Eventually, defendant ended up at the Cleveland Avenue address. He walked through the gate, went behind the barn, then walked to the trailer near the barn. He knocked on the trailer door, and a man (the groundskeeper) answered. Defendant asked for Eric, then for Glen. The man told him that no Eric or Glen lived there, and that defendant needed to leave.
As defendant walked away from the trailer, he saw Miles in his truck. He approached the truck, thinking Miles would escort him off the property. Miles asked defendant what he wanted. Defendant gave him the names of a couple of people he wanted to see. Miles said no such people lived at that address, and told defendant to leave.
Defendant began to leave the property, but Larry approached him and asked him why he was there. He told Larry he was looking for someone, was in the wrong place, and was leaving. Larry told defendant he had “better get the hell out of here,” and defendant continued to walk away. Defendant then heard sirens in the distance. At this point, Larry told him he had “fucked up” and had to wait for the police. Defendant tried to walk away again, but Larry had a gun in his hand, fired a warning shot, and told defendant to wait.
Brazil arrived, got out of her patrol car, and approached defendant. Brazil grabbed defendant by his arm, guided him to the patrol car, leaned him over the hood, asked him questions, patted him down, and placed him in handcuffs. She told defendant to get into the patrol car, and assured him that “everything is going to be all right.” Defendant got into the backseat, but he claimed his left leg got stuck in the door. He tried to get up to free his leg, and Brazil pushed him down. He told Brazil to wait because he was trying to free his foot, but Brazil then grabbed his neck. He claimed it was impossible for Brazil to push him into the car, given the position his body was in.
When Battest arrived, Battest tried to push defendant into the car. Battest could not get defendant’s body into the car, so he put defendant in a choke hold to get him out of the car. Defendant admitted he stood up and moved around but claimed it was because he was in pain. He also claimed that, even though he was cooperating, the officers kept telling him to get on the ground. He said he never resisted, and went to the ground voluntarily.
Once on the ground, he moved around but only because he was in an awkward position. The taser was not used until he was on the ground. At that point, he squirmed even more because he was reacting to the electricity. The officers used the taser several times. When asked why he was singing, laughing, and acting as if nothing had changed, defendant said he could not explain this behavior.
During the ambulance ride, defendant lay still. He could not move because he was strapped to the gurney and was in handcuffs. He did not recall telling Voeltz that he resisted the police so he would be arrested. If he made such a statement, it was untrue. Defendant claimed that, due to his altered state of mind, he did not know at the time of his arrest that Brazil, Battest, or any of the other officers were police officers, even though he knew they were wearing uniforms and driving patrol cars.
Defendant also claimed he was an easygoing person and had never done anything to harm anyone else. On cross-examination, however, he admitted that, in 2001, he pled guilty to violating section 273.5 based on allegations that he beat his pregnant girlfriend. Defendant said he did not know his girlfriend was pregnant and he did not willingly inflict corporal injury upon her.
III. DISCUSSION
A. Defendant’s Various Batson/Wheeler Claims Are Without Merit
Defendant contends the trial court erroneously denied an initial and two successive Batson/Wheeler motions he made on the grounds the prosecutor was improperly using peremptory challenges to exclude prospective jurors on the basis of their Hispanic or nonwhite ethnicity, male gender, or youthful age. Defendant is a Hispanic male, and was 27 years old at the time of trial.
In the trial court, defendant took issue with the prosecutor’s use of peremptory challenges to exclude eight prospective jurors, namely, R.Z., S.B., J.D., D.F., E.G., J.C., J.F., and A.H., on the basis of their Hispanic or nonwhite ethnicity, male gender, or young ages. The prosecutor only used eight peremptory challenges; thus, in the trial court defendant was arguing that the prosecutor exercised every one of his challenges based on group bias.
On this appeal, however, defendant does not claim that J.C., J.F., or A.H. were improperly excluded. J.C. was a Hispanic male, approximately 50 years old, and J.F. and A.H. were both young Caucasian males in their 20’s. Instead, defendant only argues that R.Z., S.B., J.D., D.F., and E.G. were excluded based on group bias. Each of these five prospective jurors were either Hispanic (R.Z. & E.G.), African-American (J.D.), Hispanic or Samoan (D.F.) or of a “racially diverse background” (S.B.). S.B. and E.G. were female; R.Z., J.D., and D.F. were male. R.Z. was both Hispanic and in his 20’s. The other four prospective jurors were at least 35 years of age.
We examine the jury selection process in its entirety, including the prosecutor’s proffered reasons for excluding all eight prospective jurors, in order to fully analyze defendant’s claims. We reject defendant’s Batson/Wheeler claims, because substantial evidence supports the trial court’s conclusion that the prosecutor excluded R.Z., S.B., J.D., D.F., and E.G. for reasons other than group bias. In addition, we reject defendant’s attempt to demonstrate group bias based on a comparative analysis, which he raises for the first time on this appeal, of some of the characteristics the excluded prospective jurors had with some of the characteristics of several of the seated jurors.
1. Overview of Applicable Law
“A prosecutor’s use of peremptory challenges to strike prospective jurors on the basis of group bias—that is, bias against ‘members of an identifiable group distinguished on racial, religious, ethnic, or similar grounds’—violates the right of a criminal defendant to trial by a jury drawn from a representative cross-section of the community under article I, section 16 of the state Constitution. [Citations.] Such a practice also violates the defendant’s right to equal protection under the Fourteenth Amendment. [Citations.] [¶] The United States Supreme Court has recently reaffirmed that Batson states the procedure and standard trial courts should use when handling motions challenging peremptory strikes. ‘First, the defendant must make out a prima facie case “by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose.” [Citations.] Second, once the defendant has made out a prima facie case, the “burden shifts to the State to explain adequately the racial exclusion” by offering permissible race-neutral justifications for the strikes. [Citations.] Third, “[i]f a race-neutral explanation is tendered, the trial court must then decide . . . whether the opponent of the strike has proved purposeful racial discrimination.” [Citation.]’” (People v. Lewis and Oliver (2006) 39 Cal.4th 970, 1008-1009, citing Johnson v. California (2005) 545 U.S. 162, 168 [125 S.Ct. 2410, 162 L.Ed. 2d 129].)
“We review the trial court’s ruling on purposeful racial discrimination for substantial evidence. [Citation.] It is presumed that the prosecutor uses peremptory challenges in a constitutional manner. We defer to the court’s ability to distinguish ‘bona fide reasons from sham excuses.’ [Citation.] As long as the court makes ‘a sincere and reasoned effort to evaluate the nondiscriminatory justifications offered, its conclusions are entitled to deference on appeal.’ [Citation.]” (People v. Lewis and Oliver, supra, 39 Cal.4th at p. 1009.)
Indeed, the trial judge, who observes the “‘demeanor of the attorney who exercises the challenge’” and can assess that attorney’s credibility (People v. Schmeck (2005) 37 Cal.4th 240, 275) is in the best position to distinguish “‘bona fide reasons from sham excuses’” (People v. Ledesma (2006) 39 Cal.4th 641, 677). Further, it is presumed that the parties used peremptory challenges in a constitutional manner. (People v. Roldan (2005) 35 Cal.4th 646, 701.) Thus, “the ultimate burden of persuasion regarding racial motivation [or group bias] rests with, and never shifts from, the opponent of the strike.” (Purkett v. Elem (1995) 514 U.S. 765, 768 [115 S.Ct. 1769, 131 L.Ed.2d 834].)
However, “[t]he exclusion by peremptory challenge of a single juror on the basis of race or ethnicity is an error of constitutional magnitude requiring reversal.” (People v. Silva (2001) 25 Cal.4th 345, 386.)
2. Relevant Background
At the beginning of jury selection, a group of prospective jurors was called into the courtroom, and several were excused for hardship. Twenty names were then randomly selected to be seated in or around the jury box, including S.B., J.D., J.C., and J.F. After the court and counsel completed voir dire, four prospective jurors were excused for cause. The parties then began to exercise peremptory challenges.
The prosecutor used his first peremptory challenge to excuse J.F. and his second to excuse J.C. After J.C. was thanked and excused, there were fewer than 12 prospective jurors in or around the jury box, so the court selected 12 more prospective jurors for questioning. These included R.Z., D.F., and E.G. Three more prospective jurors were then excused for cause.
The prosecutor used his third peremptory challenge against J.D, his fourth against S.B., and his fifth against R.Z. At sidebar, defense counsel advised the court he intended to make a Batson/Wheeler motion, and jury selection recessed for the day.
(a) The Initial Motion Regarding R.Z., S.B., J.D., J.C., and J.F.
In chambers, defense counsel asserted his motion based on the prosecutor’s excusal of R.Z., S.B., J.D., J.C., and J.F. Counsel argued it appeared the prosecutor was systematically excusing Hispanics, African-Americans, and young persons based on their memberships in these groups.
In support of his prima facie case, counsel noted that R.Z. was a young Hispanic male, “the same demographic” as defendant. He said S.B., the only female of the five whom the prosecutor had excluded to that point, “appeared to be of some racial diverse background, meaning [nonwhite].” He noted that J.D. was African-American, J.C. was Hispanic, and J.F. was a young White male, which also “fit the demographic” of defendant. Counsel clarified that, by young, he meant persons who, like defendant, were in their early to mid-20’s. Finally, counsel noted that the composition of the remaining panel included one middle-aged Hispanic male, who was approximately 45 years of age, and two females with non-Hispanic surnames who were “obviously not of young years.”
Counsel argued that J.D. and J.F. gave “nothing but even-handed answers.” He acknowledged that J.C. indicated he “didn’t want to judge someone,” but also “made it clear that he could be fair.” Counsel also saw no reason why R.Z. and S.B. would not be good jurors, and asked the court to find he had made a prima facie case of systematic exclusion based on group bias.
The trial court noted that, in view of recent U.S. Supreme Court decisions, it was unclear exactly how strong a showing was required to make a prima facie case of group bias. Thus, “in [an] abundance of caution,” the court asked the prosecutor to explain the reasons for his peremptory challenges.
The prosecutor explained he excused J.F., a young White male, because he was wearing a Motley Crue T-shirt that “had the band flipping us off.” Someone who would wear such a shirt to court while he was sitting in the jury box, the prosecutor said, was “not someone to keep.” The prosecutor also noted that J.C. initially said he could not be fair, and even after being rehabilitated on that point by the court and defense counsel, still said he did not “trust the system.”
Regarding R.Z., the young Hispanic male, the prosecutor said he excused him because he said his mother had been wrongly accused of a crime in Riverside County approximately five years earlier, and he did not believe she had been treated fairly. Also, R.Z. initially said he could not be fair and ultimately said he could only be “fair to someone.”
Regarding J.D., the middle-aged African-American male, the prosecutor explained that J.D. said he had his own ideas on what was a reasonable use of force by law enforcement. And, although J.D. also said he could follow the law on force, he emphasized that he had a preconceived notion of what constituted reasonable force. In addition, J.D. had a cousin who was serving 25 years to life for a crime that in J.D.’s view he did not commit, and J.D. had a problem with California law to that extent.
Regarding S.B., a nonwhite female with dark skin, the prosecutor explained he excused her because she worked with people with substance abuse issues. He also noted that she had many family members involved in the criminal justice system, including a cousin on death row. The prosecutor explained he excused J.C., who was approximately 50 years old and appeared to be of Hispanic descent, because J.C. twice said he could not be fair, and only later said he could probably be fair but did not trust the system.
The court found the prosecutor’s explanations to be reasonable, supported by the record, and genuine, and concluded that the prosecutor did not excuse any of the five prospective jurors based on age, race, or ethnicity.
(b) The Renewed Motions Regarding D.F. and E.G.
When jury selection resumed, the prosecutor used his sixth peremptory challenge to excuse D.F. At this point, defense counsel renewed his Batson/Wheeler motion, and the court summarily denied it. When the prosecutor used his seventh challenge to excuse E.G., counsel renewed his motion a third time, and his second and third motions were discussed in chambers.
In chambers, defense counsel incorporated his prior comments, and argued that the excusals of D.F. and E.G. bolstered his case because both were Hispanic. Counsel observed that the prosecutor had used four of his seven challenges against Hispanics, and only three Hispanics were left on the panel. At this point, however, the court was about to call additional prospective jurors into the jury box, because the number seated in the jury box was less than 12.
The court found that the defense had made a prima facie showing of exclusion based on group bias, and asked the prosecutor to explain his reasons for excusing D.F. and E.G. The prosecutor first noted that D.F. was Samoan, not Hispanic. He claimed he excused D.F. because, when D.F. mentioned he had previously been on a jury and that jury had reached a verdict, D.F. disclosed the verdict was not guilty. This violated the court’s explicit instruction to all prospective jurors not to disclose, in the event they had previously served on a jury and the jury reached a verdict, whether the verdict was guilty or not guilty.
The prosecutor acknowledged that E.G. was “clearly” of Hispanic descent. He said he excused her because of an incident that occurred in the courthouse that morning. The prosecutor and E.G. were waiting in line to enter, when an officer who was testifying in another case walked past the line instead of waiting. When that happened, E.G., “made a big fuss” with court personnel. She claimed that the officer should not have special privileges because he was wearing a uniform, and he should wait in line like everyone else. The court found the prosecutor’s explanations for excusing D.F. and E.G. to be genuine and not based on group bias. Accordingly, the renewed motions were denied.
(c) The New Motion Regarding A.H. (Based on Age and Gender Only)
After jury selection resumed, the court called to the jury panel the last five persons in the venire. These included A.H., a young Caucasian male. After questioning concluded, defense counsel exercised his seventh peremptory challenge and the prosecutor accepted the panel as constituted. The prosecutor also accepted the panel as constituted after defense counsel exercised his eighth and ninth peremptory challenges. Then, after defense counsel exercised his tenth peremptory challenge, A.H. was seated in the jury box. The prosecutor then exercised his eighth and final peremptory challenge to excuse A.H.
After A.H. was excused, defense counsel renewed his motion a fourth time. This time, however, he only asked the court to find a prima facie case of systematic exclusion based on age and gender, not on ethnicity or race. He noted that the prosecutor had used six of his eight challenges against males, and there appeared to be no reason for excusing A.H. other than his youthfulness (early 20’s) and male gender. Notably, defense counsel used his ninth and tenth challenges against two individuals with Hispanic surnames, a Ms. G. and a Mr. H.
The court found that the defense did not make a prima facie showing of systematic exclusion based on age, because the panel of 11 at that point included three males who were in their late 20’s or early 30’s. The court also found no prima facie showing based on gender, because the panel of 11 included five males, and the prosecutor had several times passed on excusing any of these panel members. Nevertheless, the court invited the prosecutor to explain his reasons for excusing A.H.
The prosecutor said he excused A.H. because he said he had no problems going against authority, he smiled when he said it, and he was wearing a stud in his lip. The prosecutor interpreted A.H.’s statements and manner as meaning he would not listen to other members of the jury during deliberations, particularly the older members.
The court found the prosecutor’s reasons for excusing A.H. to be genuine and not based on age or gender. The court noted that A.H. was “rather exuberant” “in declaring his willingness to disagree with his elders.”
When jury selection resumed, 10 more prospective jurors were called into the courtroom to supplement the existing panel of 11. Three of these individuals were excused for hardship or their jury service was postponed. Three more were excused for cause.
One more prospective juror was then seated in the jury box. Defense counsel has already used his tenth and last peremptory challenge. The prosecutor did not exercise his last two peremptory challenges and accepted the panel as constituted. Defense counsel did not make a record of age, gender, racial, or ethnic make-up of the jury as finally constituted.
3. Analysis
Defendant contends that the prosecutor’s stated reasons for excluding R.Z., S.B., J.D., D.F., and E.G. were either not supported by the record, inherently implausible, or both. He claims he met his burden of showing that all five prospective jurors were excluded on the basis of their Hispanic, African-American, Samoan, or other nonwhite race or ethnicity, or in R.Z.’s case, on the basis of his Hispanic ethnicity and his young age. He also claims that R.Z., J.D., and D.F. were excluded based on their male gender. We conclude that the trial court made a sincere and reasoned attempt to evaluate the prosecutor’s stated reasons for excluding all five prospective jurors, and that substantial evidence supports the trial court’s conclusion that none of the challenged jurors were excluded based on group bias.
(a) R.Z.
The prosecutor explained that he excused R.Z., a young Hispanic male in his 20’s, because R.Z. said his mother had been wrongly accused of a crime in Riverside County approximately five years earlier, and he did not believe she had been treated fairly. Also, R.Z. initially said he could not be fair and ultimately said he could only be “fair to someone.” R.Z.’s distrust of the criminal justice system was a legitimate, nondiscriminatory reason to excuse him. (People v. Cornwell (2005) 37 Cal.4th 50, 70.) Further, substantial evidence supports the trial court’s finding that the prosecutor genuinely excused R.Z. for this reason.
R.Z. said his mother had been accused of a crime related to “welfare.” She had several public defenders who told her to “lie to the judge,” meaning they told her to plead guilty, even though she was not guilty. She refused to plead guilty, and was ultimately released without charges. In response to the court’s questions, R.Z. acknowledged he did not know a great deal about the charges against his mother, but he said he knew enough to believe she had not been treated fairly. He said she was arrested at her place of employment and embarrassed, even though “[s]he was innocent the whole time.” Although R.Z. said he would not hold his mother’s experience against the prosecution or the defense, he insisted that the way she was treated would prevent him from being fair. He questioned whether someone was “making” defendant “lie” to the court.
(b) S.B.
S.B. was a nonwhite female, approximately 35 years of age, with dark skin and an apparently “racially diverse” background. The prosecutor claimed he excused S.B. because she worked with people with substance abuse issues, and she had many family members involved in the criminal justice system, including a cousin on death row.
Having numerous family members with close contacts within the criminal justice system is a legitimate reason to dismiss a prospective juror, because it indicates that the prospective juror may be too sympathetic to the defense. (People v. Jordan (2006) 146 Cal.App.4th 232, 257-258.) So, too, is the possibility that a prospective juror may be too sympathetic to the defense because the defendant has a drug problem. (See People v. Dunn (1995) 40 Cal.App.4th 1039, 1055.)
S.B. was a rehabilitation counselor for the State of California. Her work involved counseling people with substance abuse issues. She said her father had been convicted of something about 40 years ago, and she had a cousin on death row. She also had numerous uncles and other cousins who had been convicted of crimes, and cousins who abused drugs. In view of S.B.’s occupation as a counselor for drug-related issues, and her numerous family members with criminal convictions, the prosecution had reason to suspect that she may be too sympathetic to the defense. The evidence in the case would show that defendant had a methamphetamine problem and that he resisted arrest while under the influence of methamphetamine.
(c) J.D.
J.D. was an African-American male, approximately 45 years of age. The prosecutor said he excused J.D. because he said he had his own ideas on what constituted a reasonable use of force by law enforcement. In addition, the prosecutor said he excused J.D. because J.D. had a cousin who was serving 25 years to life for a crime that, in J.D.’s view, he did not commit, and J.D. had a problem with California law to that extent.
When the entire panel was asked whether anyone felt they would “know too much force when they saw it regardless of the law,” J.D. responded, “I think that—well, obviously, use the law as a guide if that was a factor in the case. But I think that I know from experience . . . how much force would be necessary to secure an arrest . . . .” J.D. added, however, that he would not let his personal opinion on what constituted reasonable force “fly in the face of [the] law . . . .”
Earlier, J.D. said he had a cousin who was serving 25 years to life in prison. J.D. believed that law enforcement had treated his cousin fairly, but he said he “kind of had a problem with the law. [The] State of California says if you were present or somehow involved with something, that basically he got the same charge as the person who actually committed the murder because he met up with the person two hours later. And so he was charged with the exact same crime and found guilty. So I have a problem with it. I don’t think it would prevent me from being impartial, but I do have a problem with . . . a little part of California state law.” J.D. then added that his problem was with “the way they proceed[ed]—the way LAPD and the district attorney proceeded.”
Excusing prospective jurors who have expressed that they personally hold biased views does not offend Batson or Wheeler. (People v. Lewis and Oliver, supra, 39 Cal.4th at p. 1016 [“prosecutor may excuse prospective jurors, including members of cognizable groups, based on personal, individual biases those individuals actually express”].) Here, J.D. expressly indicated he would not follow the law in the event he did not agree with it or did not like how it was being applied by law enforcement in a particular case. This was a legitimate reason for excusing him.
(d) D.F.
D.F. was either a Hispanic or Samoan male, and his age is unclear from the record. The prosecutor claimed he excused D.F. because, when D.F. mentioned he had previously been on a jury and that the jury had reached a verdict, D.F. disclosed that the verdict was not guilty, even though the trial court had instructed the prospective jurors not to disclose the nature of any verdict in any case in which they had previously served on a jury. Instead, they were only to disclose whether they reached a verdict. D.F.’s disclosure that his jury had reached a not guilty verdict indicated that D.F. was unable to follow the court’s instructions. It also indicated that D.F. may have been biased against or skeptical of the prosecution’s case. In either event, the prosecutor had a legitimate reason for excusing D.F. (People v. Gutierrez (2002) 28 Cal.4th 1083, 1125.)
(e) E.G.
E.G. was a Hispanic female. The prosecutor claimed he excused her because of an incident that occurred in the courthouse that morning. The prosecutor and E.G. were waiting in line to enter when an officer who was testifying in another case walked past the line instead of waiting. When that happened, E.G. “made a big fuss” with court personnel. She claimed that the officer should not have special privileges because he was wearing a uniform, and he should wait in line like everyone else. The trial court accepted the prosecutor’s reasons for excusing E.G. as genuine, and defense counsel did not request an evidentiary hearing on the matter.
Based on the prosecutor’s description of the incident, E.G. was rude, belligerent, and pushy. Her willingness to make “a big fuss” out of such a small thing indicated that she harbored a personal and visceral bias against law enforcement, and that she may have been unwilling to deliberate with other jurors. In either or both events, the prosecutor had a legitimate reason for excusing her. (People v. Lewis and Oliver, supra, 39 Cal.4th at p. 1016.)
(f) Comparative Analysis
Defendant attempts to compare the responses and characteristics of S.B., J.D., and E.G. with several of the seated jurors, namely Juror Nos. 1, 7, and 12. Defendant argues that, based on his comparative analyses, the prosecutor’s reasons for excusing S.B., J.D., and E.G. must have been based on group bias. He argues that, like S.B., Juror Nos. 1 and 12, had family members who either had “issues” with drugs or who had been arrested. He also points out that Juror No. 7 had opinions about the use of force that were similar to those of J.D., and that Juror No. 12 was just as opinionated as E.G.
Regarding J.D. and EG., defendant’s comparative claims are clearly without merit. The prosecutor did not excuse J.D. solely because he had his own ideas about what constituted reasonable or excessive use of force. Instead, J.D. was excused because he indicated he would not follow the law if he did not agree with it or how it was being applied in a particular case. Nor did the prosecutor excuse E.G. merely because she was “opinionated.” Rather, he excused E.G. because she exhibited a rude and belligerent demeanor toward court security personnel when a police officer was allowed to move to the front of the line leading into the courthouse. As discussed, E.G. thus exhibited a personal bias against law enforcement and an unwillingness to deliberate.
Moreover, defendant did not make a record of the races and ethnicities of any of the seated jurors. Nor did he ask the trial court to conduct a comparative analysis of the prosecutor’s stated reasons for excusing J.D., E.G., or S.B., with the responses of any of the seated jurors, including Juror Nos. 1, 7, and 12. It is therefore impossible to fully and accurately compare the prosecutor’s reasons for excusing S.B., J.D., or E.G. with the responses and the racial and ethnic characteristics of any of the seated jurors, including Juror Nos. 1, 7, and 12. (People v. Johnson (1989) 47 Cal.3d 1194, 1220-1221.)
Defendant suggests he was unable to make a record of the races and ethnicities of the 12 seated jurors because, under Code of Civil Procedure section 237, their names may not be made available to the public without prior notification to them. We are not persuaded. Nothing in the statute prevented the defense from making a record of the racial and ethnic composition of the seated jurors.
Indeed, “the very dynamics of the jury selection process make it difficult, if not impossible, on a cold record, to evaluate or compare the peremptory challenge of one juror with the retention of another juror [who] on paper appears to be substantially similar.” (People v. Johnson, supra, 47 Cal.3d at p. 1221; see also People v. Ledesma, supra, 39 Cal.4th at p. 679 [discussing unreliability of comparative analysis raised for first time on appeal].) Thus, an attempt to compare a prosecutor’s reasons for excluding one prospective juror with the responses and characteristics of an unchallenged, seated juror, after the jury selection process has concluded and the prosecutor was never asked to explain his decision not to exclude the seated juror, is generally speculative and unreliable. (People v. Johnson, supra, at p. 1221.)
Miller-El v. Dretke (2005) 545 U.S. 231, 241 [125 S.Ct. 2317, 162 L.Ed.2d 196] does not compel a different result. There, the high court held that if a prosecutor’s stated reason for striking a member of a cognizable group applies equally to an “otherwise-similar” juror who is not a member of the cognizable group, then that is “evidence tending to prove purposeful discrimination to be considered on Batson’s third step.” (Ibid.) Here, however, it is impossible to tell whether any of the seated jurors were truly “otherwise similar” to S.B., J.D., or E.G., in terms of race and ethnicity. Nor is it possible to discern or properly evaluate why the prosecutor declined to excuse Juror Nos. 1, 7, and 12, despite any of their apparent similarities to S.B., J.D., or E.G. on this “cold record.” (People v. Johnson, supra, 47 Cal.3d at p. 1221.)
On this record, therefore, defendant’s comparative analysis is unreliable and fails to demonstrate purposeful discrimination. It is also notable that the prosecutor accepted the jury panel as constituted, after which defense counsel used his ninth and tenth peremptory challenges to excuse two individuals with Hispanic surnames, a Ms. G. and a Mr. H. The prosecutor’s failure to excuse Ms. G. or Mr. H., coupled with the prosecutor’s legitimate reasons for excusing R.Z., S.B., J.D., D.F., and E.G., indicates he did not challenge either R.Z., S.B., J.D., D.F., or E.G. based on any type of group bias.
Finally, and although not directly challenged here, the prosecutor had legitimate reasons for excluding J.C., the only other Hispanic or nonwhite juror whom the prosecutor dismissed. J.C. was a Hispanic male approximately 50 years of age. J.C. said he did not believe in the legal system because he had once been “punished” unfairly. He explained he had been divorced nearly 30 years ago, and his children were awarded to his “crazy wife.” He said he did not believe in or trust the courts because “we all have different minds” and what he once thought would “never change.” Like E.G., J.C. indicated an unwillingness to deliberate, a legitimate reason for excluding him.
B. The Trial Court Did Not Err in Permitting Larry, Miles, or Ryan to Opine That the Officers Did Not Use Excessive Force in Attempting to Restrain Defendant
Defendant contends the trial court erroneously, and over his objections, permitted Larry, Miles, and Ryan to give their lay opinions regarding whether the officers used excessive force in attempting to arrest defendant. He argues that the testimony of these three lay witnesses invaded the province of the jury as the finder of fact, and amounted to a legal conclusion which could only be given by an expert.
As we explain, defendant forfeited this claim regarding the testimony of Larry and Miles, because he failed to object to their testimony on this ground. In any event, defendant’s claim lacks merit regarding the testimony of all three witnesses.
1. Relevant Background
Ryan testified, over objections, that the officers were “affable” and not “forcible enough” in their efforts to restrain defendant. Similarly, Miles was permitted to testify, over a foundation objection, that the officers’ use of force was not more than was necessary to restrain defendant. Larry answered “no” over foundation and vagueness objections, when he was asked whether the officers ever “[d]id . . . anything in excess on the amount of force that was needed to restrain” defendant.
2. Forfeiture
A judgment may be reversed based on the erroneous admission of evidence only if an objection to the evidence or a motion to strike it was “timely made and so stated as to make clear the specific ground of the objection.” (Evid. Code, § 353; People v. Demetrulias (2006) 39 Cal.4th 1, 20.) This means that a “‘“‘defendant’s failure to make a timely and specific objection’ on the ground asserted on appeal makes that ground not cognizable.”’” (People v. Demetrulias, supra, at p. 20, citing People v. Partida (2005) 37 Cal.4th 428, 433-434; accord, People v. Marks (2003) 31 Cal.4th 197, 228 [“A general objection to the admission or exclusion of evidence, or one based on a different ground from that advanced at trial, does not preserve the claim for appeal”].)
Defense counsel did not object to Larry’s or Miles’s testimony concerning the officers’ use of reasonable or unreasonable force on the grounds raised here, namely, that the testimony called for an improper lay opinion or invaded the province of the jury to decide an ultimate issue of fact. Instead, counsel objected to the prosecutor’s questions on the grounds they were vague or lacked foundation—that is, there was no evidence the witness had personal knowledge of what was being asked.
Only when Ryan testified did counsel object on the grounds the question called for a lay opinion and invaded the province of the jury. Thus, defendant has preserved his claim of error regarding Ryan’s testimony, but has forfeited his claim regarding Larry’s and Miles’s testimony. In any event, and as we next explain, defendant’s claim that the questions called for an improper lay opinion or invaded the province of the jury as the trier of fact lacks merit regarding the testimony of all three witnesses.
3. Applicable Law and Analysis
A violation of section 69—knowingly resisting, by the use of force and violence, a police officer in the performance of his or her duties—requires the officer to be engaged in the lawful performance of his or her duties at the time of the offense. (People v. Gonzalez (1990) 51 Cal.3d 1179, 1217.) CALJIC No. 9.26 properly told the jurors that a peace officer may use “reasonable force” in making an arrest, but may not use “unreasonable or excessive force.” (See People v. Curtis (1969) 70 Cal.2d 347, 357, 359.)
“If a witness is not testifying as an expert, his testimony in the form of an opinion is limited to such an opinion as is permitted by law, including but not limited to an opinion that is: [¶] (a) Rationally based on the perception of the witness; and [¶] (b) Helpful to a clear understanding of his testimony.” (Evid. Code, § 800.)
We review a trial court’s ruling on the admissibility of evidence for an abuse of discretion. (People v. Waidla (2000) 22 Cal.4th 690, 725.) “It is fundamental that a trial judge has wide discretion to admit or reject opinion evidence, and that a [C]ourt of [A]ppeal has no power to interfere with the ruling unless there is an obvious and pronounced abuse of discretion . . . .” (People v. Clark (1970) 6 Cal.App.3d 658, 664.)
The testimony of Ryan, Miles, or Larry to the effect that the officers did not use excessive force in arresting or attempting to restrain defendant was permissible lay opinion testimony. It was rationally based on each witness’s perception and helpful to a clear understanding of each witness’s testimony. (Evid. Code, § 800; People v. Farnam (2002) 28 Cal.4th 107, 153-154 [correctional sergeant’s testimony that defendant stood “in a posture like he was going to start fighting” and was being “very defiant” properly admitted under Evid. Code, § 800].)
Nor did the testimony of Ryan, Miles, or Larry invade the province of the jury to determine the ultimate issue of whether the officers used excessive or reasonable force. “Testimony in the form of an opinion that is otherwise admissible is not objectionable because it embraces the ultimate issue to be decided by the trier of fact.” (Evid. Code, § 805.) Here, the testimony was “otherwise admissible” under Evidence Code section 800, and was therefore not objectionable merely because it embraced the ultimate issue of whether the officers used reasonable force. (Evid. Code, § 805.)
Defendant asserts, without citing any authority, that Evidence Code section 805 applies only to expert testimony. Thus, defendant suggests that nonexpert testimony, even if otherwise admissible, may never embrace an ultimate issue of fact. Not so. (See People v. Prince (2007) 40 Cal.4th 1179, 1227.) By its terms, Evidence Code section 805 applies to “opinion” testimony; it is not limited to “expert” opinion testimony. (See Evid. Code, § 801.)
IV. DISPOSITION
The judgment is affirmed.
We concur:
Hollenhorst Acting P.J., Richli J.