Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County No. F07906982 Gary R. Orozco, Judge.
Deborah L. Hawkins, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, David A. Rhodes and Michael Dolida, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
DETJEN, J.
Defendant, Kevin Christopher Fernandez, was convicted of kidnapping during the commission of a carjacking in violation of Penal Code section 209.5, subdivision (a). He appeals claiming the trial court erred when it failed to find a prima facie case of ethnic discrimination during jury selection and denied his Wheeler/Batson motion (People v. Wheeler (1978) 22 Cal.3d 258; Batson v. Kentucky (1986) 476 U.S. 79, 106). We find no error and affirm the judgment.
FACTS
Because the only issue raised on appeal by defendant is the denial of his Wheeler/Batson motion, the facts of the crime are not pertinent to the issues. Briefly, C. Salcido was forced at knifepoint into his vehicle by defendant and Jonathan Samuel Chaidez. He was driven to an automated teller machine. Money was withdrawn from his account. His hands were bound and tape was placed over his eyes. He was released into a dark field. After removing the tape he started to walk home. He was hit by a car and injured.
Defendant was tried with codefendant, Jonathan Samuel Chaidez. Chaidez’s appeal is separate. (F058460.)
DISCUSSION
A Wheeler/Batson motion involves three distinct steps. “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.’” (Johnson v. California (2005) 545 U.S. 162, 168, fn. omitted.)
During selection of the jury the prosecutor exercised his first peremptory challenge against a female Hispanic, M.V. During questioning by defendant’s counsel the prospective jurors were asked if they had any family members or friends that involved themselves in the gang lifestyle. M.V. responded to this question and when asked if there was anything about that which would make her feel uncomfortable sitting on this case, she replied, “Uhm -- I have my opinions, but I don’t want to say it outloud, I think it’s -- I mean, everybody is the way they are, but they are the way they are for a reason, and I can’t judge somebody for being in a gang or anything like that.”
The People’s second challenge was to a Caucasian male, P.M. During voir dire P.M. stated that he had been arrested years ago for resisting arrest in this county and he did not believe he had been treated fairly.
The prosecutor’s third challenge was to a female Hispanic, A.C. During voir dire A.C. said that her spouse had been arrested in this county over two years ago when he was in an argument. When he was searched a pocket knife was found. He was charged with “that” and placed on probation for three years. She was not present during the incident. When asked by the court if she felt he was treated fairly, or did she have feelings related to the incident, she responded, “Well, he plead guilty to it so --.” She then said, “Uhm -- I believe everything was dealt correctly.” She said it would not affect her ability to be fair in this case.
After the prosecutor challenged A.C., counsel for codefendant Chaidez made a Wheeler/Batson motion. Chaidez claimed that the prosecutor was systematically excluding Hispanics and he was concerned because his client is Hispanic. Defense counsel represented that there was nothing in the background of the two excused Hispanic prospective jurors that would jump out as a reason to exclude them. The court noted that A.C.’s husband had been arrested two years earlier.
Defendant joined in the motion made by Chaidez and stated that the excluded jurors were not simply Hispanic, but young Hispanic females, and it appeared there was a deliberate attempt to exclude that class of individuals from the jury.
Although defendant challenged the excusals of the jurors based on race and gender, he has not renewed his gender challenge on appeal. Also, he did not make a record regarding gender discrimination in the trial court sufficient for us to review this basis for his motion.
The court stated it was not yet making a ruling as to whether a prima facie case had been shown and asked the prosecutor if he would care to share with the court his reasons for those excusals. The court noted that the balance of the panel in the audience contained four or five Hispanic surnamed persons.
The prosecutor explained that he had excused three jurors thus far, including a white male, and the reason for the excusals was the same. The prosecutor believed that all three of the excused prospective jurors might have a possible bias against law enforcement. M.V. made a statement during voir dire that she would not judge anyone for being in a gang and that indicated to the prosecutor that she might be lenient towards gangs. He excused A.C. because she said her husband had been arrested while in possession of a knife and while she said she would not hold that against the police, the prosecutor thought there could be a bias. The prosecutor stated that he did not excuse anyone based on race.
The court denied the motion finding that a prima facie case had not been made.
Defendant claims the trial court erred. He contends the record revealed that A.C. and M.V. were impartial jurors. Defendant asks this court to conduct a comparative analysis. While defendant acknowledges that a comparative analysis is not required where only a step-one ruling (prima facie case) has been made, defendant argues that because the prosecutor gave reasons for his exclusions a comparative analysis is required.
In determining whether a prima facie case has been established “a defendant satisfies the requirements of Batson’s first step by producing evidence sufficient to permit the trial judge to draw an inference that discrimination has occurred.” (Johnson v. California, supra, 545 U.S. at p. 170.) “Though not strictly required, it is the better practice for the trial court to have the prosecution put on the record its race-neutral explanation for any contested peremptory challenge, even when the trial court may ultimately conclude no prima facie case has been made out. This may assist the trial court in evaluating the challenge and will certainly assist reviewing courts in fairly assessing whether any constitutional violation has been established.” (People v. Bonilla (2007) 41 Cal.4th 313, 343, fn. 13.)
“In deciding whether a prima facie case was stated, we consider the entire record before the trial court [citation], but certain types of evidence may be especially relevant: ‘[T]he party may show that his opponent has struck most or all of the members of the identified group from the venire, or has used a disproportionate number of his peremptories against the group. He may also demonstrate that the jurors in question share only this one characteristic-their membership in the group-and that in all other respects they are as heterogeneous as the community as a whole. Next, the showing may be supplemented when appropriate by such circumstances as the failure of his opponent to engage these same jurors in more than desultory voir dire, or indeed to ask them any questions at all. Lastly, ... the defendant need not be a member of the excluded group in order to complain of a violation of the representative cross-section rule; yet if he is, and especially if in addition his alleged victim is a member of the group to which the majority of the remaining jurors belong, these facts may also be called to the court’s attention.’” (People v. Bonilla, supra, 41 Cal.4th at p. 342.)
A pattern of discrimination is “difficult to discern when the number of challenges is extremely small.” (People v. Bonilla, supra, 41 Cal.4th at p. 343, fn. 12.) Only three peremptory challenges had been made at the time defendant brought his motion. Two of the three challenges were to Hispanic prospective jurors. Although the prosecutor struck two Hispanic jurors, the court noted that four or five Hispanic surnamed jurors remained. Thus, the prosecutor did not strike most or all of the members of the identified group from the venire. In addition, the three prospective jurors who were peremptorily challenged by the prosecutor, including P.M., gave answers during voir dire that might indicate a bias against law enforcement. The two challenged prospective jurors thus shared more than the one characteristic that they were Hispanic females. Although the prosecutor did not ask A.C. any individualized questions, the prosecutor did not ask further questions of some of the other prospective jurors except for questions directed at the group as a whole. Also, if the prosecutor had already determined that he did not want A.C. to serve on the jury because her husband had been recently arrested by the same police department involved in the current case, then there would be no reason for him to ask further questions. The prosecutor asked further questions of M.V. The questioning by the prosecutor does not show bias. Although both defendants are Hispanic, and the challenged prospective jurors are Hispanic, the alleged victim is also Hispanic. Thus, it does not appear that the prosecutor was discriminating against the defendants in order to have a jury comprised of individuals associated with the victim’s heritage.
In addition, the information elicited in voir dire showed race-neutral reasons for peremptorily challenging the prospective jurors. A.C.’s husband had been arrested by the same police department and prosecuted by the same district attorney’s office involved in the current case. His arrest and prosecution occurred only two years previously and he was still on probation for this offense. These factors could indicate a bias against the police department, even if A.C. stated there was no bias. M.V.’s responses to the gang-related questions posed to her clearly indicated the potential for a bias against law enforcement and leniency toward those involved in a gang lifestyle. From all of these factors we conclude the evidence was sufficient to support the trial court’s finding that defendant did not meet his burden of establishing a prima facie case of group discrimination.
As for defendant’s request for this court to engage in a comparative juror analysis, such an analysis is not required when the trial court denies the motion in the first stage of the Wheeler/Batson review. (People v. Hawthorne (2009) 46 Cal.4th 67, 80, fn. 3.) Defendant’s reliance on People v. Lenix (2008) 44 Cal.4th 602 does not aid his position. In Lenix the trial court ruled on the ultimate question of intentional discrimination, bypassing the question of whether defendant established a prima facie case of discrimination. (Id. at p. 613, fn. 8.)
In People v. Howard (2008) 42 Cal.4th 1000, 1019 our Supreme Court declined to engage in comparative juror analysis in a first-stage Wheeler/Batson case finding such analysis has “‘little or no use where the analysis does not hinge on the prosecution’s actual proffered rationales.’” (Howard, supra, at p. 1020.)
The Howard court went on to expressly reject the argument now made by defendant. “We have encouraged trial courts to ask prosecutors to give explanations for contested peremptory challenges, even in the absence of a prima facie showing. [Citation.] We emphasize that if a court ultimately concludes that a prima facie showing has not been made, the request for and provision of explanations does not convert a first-stage Wheeler/Batson case into a third-stage case.” (People v. Howard, supra, 42 Cal.4th at p. 1020.)
In addition, defendant’s only basis for a challenge based on comparative analysis is that the prosecutor did not strike Juror No. 13 and Juror No. 10, even though they had significant involvement in the Fresno law enforcement system. Juror No. 13’s stepfather had been robbed in Fresno approximately 10 years earlier. Juror No. 10’s boyfriend was murdered in Fresno County in 1992 and someone was convicted for his murder.
The comparison made by the defendant of the two excused prospective jurors with the two jurors kept by the prosecution does not demonstrate bias. The two groups are comparatively different. Jurors No. 13 and 10 both had contacts with the law enforcement system from a victim’s perspective, a position more favorable to the prosecution, while the two excused prospective jurors had contacts favoring the defendant, not the victim. Defendant’s argument regarding comparative analysis fails.
DISPOSITION
The judgment is affirmed.
WE CONCUR: LEVY, Acting P.J.KANE, J.