Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. GA057394 Teri Schwartz, Judge.
Donna L. Harris, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Victoria B. Wilson and Noah P. Hill, Deputy Attorneys General, for Plaintiff and Respondent.
ARMSTRONG, J.
Appellant Eusebio Guerrero was convicted, following a jury trial, of one count of first degree murder in violation of Penal Code section 187, subdivision (a). The jury found true the allegation that appellant had personally discharged a firearm during the commission of the offense within the meaning of Penal Code section 12022.53, subdivisions (c) and (d). Appellant admitted that he had suffered one prior serious felony conviction within the meaning of section 667, subdivision (a) and the "Three Strikes" law (§§ 667, subds. (b) through (i) and 1170.12). Appellant withdrew his plea of not guilty by reason of insanity in exchange for a sentence of 25 years to life in state prison.
Appellant appeals from the judgment of conviction, contending that the trial court erred in denying his Wheeler/Batson motion and in imposing a $30 assessment pursuant to Government Code section 70373. We affirm the judgment of conviction.
Facts
Appellant spent the evening of May 6, 2004 at the home of his uncle, Jose Diaz. Also present were appellant's uncle Roberto Diaz-Oregel, Jose's son Eddie, and one other man. The men played foosball on the house's patio for a while.
At 10:55 p.m., Roberto said that he was tired of playing foosball and turned away from the table. Appellant said that he had a headache. Appellant then removed a gun from his waistband and shot Roberto three times in the back, from a distance of about five feet. Appellant fled, returned, and shot Roberto again while Roberto was on the ground. Appellant then fled again and did not return. Roberto died from his gunshot wounds.
Discussion
1. Wheeler/Batson motion
Appellant contends that the trial court erred in denying his motion for a mistrial pursuant to People v. Wheeler (1978) 22 Cal.3d 258 on the ground that the prosecutor was improperly excluding African-American jurors on the basis of their race. We see no error.
Under Wheeler, supra, the party claiming a discriminatory use of peremptory challenges must first make a prima facie showing of such discrimination. Once such a showing is made to the satisfaction of the court, the burden shifts to the other party to provide a "race-neutral explanation related to the particular case to be tried." (People v. Fuentes (1991) 54 Cal.3d 707, 714.) The court must then evaluate the explanation provided for each dismissal and determine whether the explanation is genuine or sham. (Id. at p. 717.)
A defendant may show a prima facie case of discrimination by establishing that the excluded jurors are members of a cognizable group and producing evidence sufficient to support at least a reasonable inference that the jurors are being challenged on the basis of their cognizable group membership. (People v. Box (2000) 23 Cal.4th 1153, 1187.)
When a prima facie showing is made, the burden shifts to the prosecutor to provide a race-neutral explanation. The prosecutor must offer a "clear and reasonably specific explanation." (Purkett v. Elem (1995) 514 U.S. 765, 767-768.) As long as the reason "is not inherently discriminatory, it suffices." (Rice v. Collins (2006) 546 U.S. 333, 338.) The explanation need not rise to the level justifying exercise of a challenge for cause. (People v. Williams (1997) 16 Cal.4th 635, 664.) A prospective juror may be excused on the basis of a hunch or even arbitrarily as long as the reason is not due to an impermissible group bias. (People v. Turner (1994) 8 Cal.4th 137, 164.)
Where a trial court denies a Wheeler motion on the basis that the prosecutor has established the absence of purposeful discrimination, the appellate court will uphold the ruling if there is substantial evidence to support it. (People v. Jones (1998) 17 Cal.4th 279, 293.) Because the trial court's findings largely turn on an evaluation of credibility, the reviewing courts generally "rely on the good judgment of the trial court to distinguish bona fide reasons... from sham excuses." (People v. Williams, supra, 16 Cal.4th at p. 666.)
Here, appellant established that all three of the jurors in question were African-American and that there were no more jurors who appeared to be African-American. The trial court found that appellant had "certainly [made] a prima facie showing." The court explained: "I'm looking through my notes and my memory and I don't recall anything in particular as to any of them that's any different from some of the other jurors that have been excused that are not African/American. [¶] So I think at this point I will ask [the] People to indicate reasons, if any."
The prosecutor gave detailed reasons for her decisions, which are discussed in more detail below. The trial court found: "I do believe that [the prosecutor] has exercised each one of the challenges against African/Americans for a legitimate and race neutral reason. I do believe that each of the jurors did, in fact, exhibit what she has stated that she heard, thought and saw. [¶] The only thing I didn't see is No. 4 sleeping. If I did, I would have done something. But with respect to her observations as to the rest of the facts that she cited, I don't have any dispute. I think the record should reflect that that was an accurate assessment of what these people displayed, at least in terms of their demeanor and manner. [¶] I just don't have - - I don't have anything specific here to indicate that there hasn't been proper exercise of a peremptory challenge as to each of those jurors. [¶] And likewise, I do believe the other African/American [prospective] juror that we had to excuse, I do believe [the prosecutor] when she says that she would have kept her because I know that we were all pretty disappointed when we heard that she had a situation come up that would necessitate her leaving. I mean she was excused out of necessity and no other reasons. And I think that everyone was disappointed, including [the prosecutor]. [¶] So I'm going to deny the motion. You know, a lot of it is based on obviously whether or not I believe the People and I do. And whether or not my observations are similar. I'm also looking at my background and experience. I probably would have done the same thing with these jurors. [¶] So I just don't - - I just can't say that there has been any improper exercise of peremptory challenges on the part of the People with respect to any race or ethnic group, cognizable group, but in particular as to the African/American jurors that were the subject of this motion." (Italics added.)
Appellant contends that the prosecutor's reasons were pretextual and so the trial court erred in denying appellant's Wheeler motion. We consider the prosecutor's reasons for challenging each juror.
a. Prospective Juror No. 4
The prosecutor explained that she had excused Juror No. 4 because: "He was single; four kids; and he worked at public works. I show that he was on a hung jury, which I did not like because I think that once you have the idea of a hung jury - - now, there have been others, but many of the others have been on juries that have actually come to a verdict. [¶] So having the idea of a hung, I didn't like that. That was one of the reasons. The more important reason is that I had noticed that while we were questioning other jurors, he was asleep. I even noted it and I told defense counsel, 'look at No. 4, I think he is asleep.' And that made me think that he wasn't going to listen to whatever was going on. [¶] That was even made more clear upon my question of has anyone here ever been in a criminal courtroom for any reason other than jury selection or having a traffic ticket. And then it came out that he had actually testified. And it appeared - - I don't know - - but it sounded like he had been a victim in a case in which his girlfriend had been accused. And it sounded like - - his answers make it sound like and he got her off because of the way he testified or didn't. [¶] And so in light of the fact that when he answered that he didn't have any questions - - or that he didn't have any affirmative questions as to any of the questionnaire that was clearly addressed as a victim, that's why I kicked No. 4."
The prosecutor's two primary reasons for exercising a peremptory challenge against prospective Juror No. 4 were race-neutral reasons. Prior service on a hung jury is a race-neutral reason for exercising a peremptory challenge against a prospective juror, as is inattention to the proceedings. (See People v. Rodriguez (1999) 76 Cal.App.4th 1093, 1108-1109 [prior service on a hung jury]; People v. Lenix (2008) 44 Cal.4th 602, 613 [inattention].)
Appellant claims that the prosecutor's reliance on Juror No. 4's service on a hung jury was a sham because the prosecutor accepted four other jurors who had been on hung juries. All four of these jurors had also served on juries which had reached verdicts. Juror No. 4 had not.
Further, jury service was only one of the reasons the prosecutor gave for excusing Juror No. 4. A comparison of an excused juror with other jurors generally is not helpful where, as here, the party exercising the challenge provides multiple reasons for the challenge. (See People v. Lenix, supra, 44 Cal.4th at p. 631; People v. Ledesma (2006) 39 Cal.4th 641, 679.)
Appellant also claims that the prosecutor's reliance on No. 4's inattention is pretextual. The prosecutor's belief that Juror No. 4 would be inattentive was based on her observation of the juror sleeping, and the juror's response to the jury questionnaire. Appellant contends that neither observation is supported by the record.
Appellant points out, correctly, that the trial court stated that it did not observe Juror No. 4 sleeping, and the record shows that Juror No. 4 answered questions during voir dire. The trial court did not dispute the prosecutor's observation, however, but merely noted that the court had not seen the juror sleeping. The prosecutor stated that she had pointed out the sleeping to appellant's counsel, and appellant's counsel did not dispute this. The fact that Juror No. 4 answered questions only shows that he was awake for part of the time. It does not preclude brief periods of sleep.
Appellant also questions the prosecutor's account of Juror No. 4.'s responses to the jury questionnaire, noting that the prosecutor claimed that the juror had failed to respond that he had been a victim in a case in which his girlfriend had been accused. In fact, the pertinent question the questionnaire asked jurors if "you or any member of your family or close friends [had] ever been accused of or arrested for a crime?" Juror No. 4 did not mention any charges against his wife when the court asked him if he had any "yes" answers to the questionnaire. The prosecutor only learned of the charges when she asked if any jurors had been inside of a criminal courtroom for any reason, and Juror No. 4 replied that he had been a witness in a case involving charges against his wife. Thus, appellant is correct that the prosecutor did not precisely recite the exact omission by Juror No. 4. We see no significance to what was unmistakably a slight confusion about the facts by the prosecutor. The prosecutor was correct on the key point that Juror No. 4 did not accurately respond to the jury questionnaire.
b. Prospective Juror No. 37
The prosecutor explained that she had excused Juror No. 37 because: "That gentleman even came to my attention by [defense counsel] who when he saw him in the audience said, 'there's my foreman.' He appeared to have like a Rastafarian long dreadlock hairdo, very unconventional looking, which is fine, except that also he noted that he had been arrested for marijuana. [¶] While that was 30 years ago, he still sat in the position that I believe was more - - would give him a little more sympathy toward [appellant]. More importantly, he appeared to be a little dazed. And that in conjunction with his marijuana arrest and conviction, at points I noticed that when Your Honor spoke to him, his mouth was even wide open, almost in a weird daze. [¶] And I just couldn't trust that he was going to really listen and follow through. And he had this very - - he would shake; his head would go up and down; I didn't think he would mesh very well with the rest of the jury in light of his conviction and in light of his demeanor in court. [¶] More importantly, again, that wide open mouth; and the shaking - - not shaking, but his head kept nodding, but it wasn't a response to anything that he would be nodding his head to. So that is why I excused Juror No. 37."
The prosecutor's two primary reasons for exercising a peremptory challenge against prospective Juror No. 37 were race-neutral reasons. An unconventional appearance, including a hairstyle, is a legitimate basis for challenging a prospective juror. (See People v. Reynoso (2003) 31 Cal.4th 903, 924; People v. Wheeler, supra, 22 Cal.3d at p. 275; People v. Jordan (2006) 146 Cal.App.4th 232, 255.) Inattention is a legitimate reason to excuse a prospective juror. (People v. Lenix, supra, 44 Cal.4th at p. 613.)
Appellant contends that the prosecutor made an improper group-based assumption based on Juror No. 37's dreadlocks, a hair-style worn predominantly by African-Americans. Most people who wear dreadlocks may be African-American, but most African-Americans do not wear dreadlocks. Thus, Juror No. 37's hairstyle was unconventional even within his racial group.
Appellant also contends that Juror No. 37 appeared to be both attentive and cooperative because he answered the court's questionnaire without hesitation. The court found the prosecutor's description of Juror No. 37 as having a dazed appearance, open mouth and nodding head to be accurate. The prosecutor's belief that these attributes indicated that Juror No. 37 was having trouble paying attention is a reasonable inference. It is not made unreasonable by the fact that the juror was able to respond to a few questions.
c. Prospective Juror No. 32
The prosecutor explained that she had excused Juror No. 32 because: "The reason that I excused her is she seemed a little too eager to be a juror to me. She talked about the importance of the case, which is fine. And [I did] leave her on for quite a while so I could continue to observe her. At first I thought it was a good thing that she felt the case was important and needed attention. [¶] However, she works at a child development location, which I'm always quite honestly a little [wary] of teachers and anyone who works with smaller children. I feel it may be a field where they feel they need to take care of or save someone. That was further in the top of my mind when I saw that she had a big cross on the last day hanging from the front. [¶] And I saw her frown and was looking and paying a little too much attention to everything that was being said. At one point she frowned at me and I got a really bad vibe from that. She also indicated that she had dealt with psychologists regarding the children at her location. It seemed like she was a bit of a healer; a little more on the social worker side. And I didn't want to risk that on my jury, especially on a case where we would [have] psychiatrists testifying."
The prosecutor's two primary reasons for exercising a peremptory challenge against prospective Juror No. 32 were race-neutral reasons. (See People v. Reynoso, supra, 31 Cal.4th at p. 924 [prosecutor may exercise peremptory challenge on the basis of prospective juror's profession]; People v. Wheeler, supra, 22 Cal.3d at p. 275 [jurors act of glaring at one of the parties during jury selection is a race-neutral reason to exercise a peremptory challenge].)
Appellant contends that the prosecutor's claim that Juror No. 32 worked with small children, had dealt with psychologists and seemed to be a healer was not supported by the record. He further contends that the reason was pretextual because the prosecutor did not excuse Juror No. 68 [who became Alternate Juror No. 4] who worked for the court and notified parties in family law matters of psychologists appointments and who worked with the charity Dogs for the Deaf.
Appellant is correct that Juror No. 32 stated that she did not work directly with children or psychologists. We see no significance to these facts. Her job involved "referring" parents to mental health professionals and "making sure parents get the services they may need for children." Thus, her job appears to have been assisting parents and children by identifying to the parents appropriate professionals for their children. She helped children and had familiarity with psychological services. In contrast, Juror No. 68 sent psychologists paperwork to notify them that they had been assigned to a case. She did not talk to them about any portion of the case. Her job appears to have been purely clerical, and thus dissimilar to Juror No. 32's job.
Further, even if the two jurors' jobs were very similar, the prosecutor did not challenge Juror No. 32 solely on the basis of her job. The challenge was also based on the juror frowning at the prosecutor, an act which the court confirmed. There is nothing to suggest that Juror No. 68 frowned at the prosecutor. As we note, ante, comparisons generally are not helpful where multiple reasons are given for the challenge. (See People v. Lenix, supra, 44 Cal.4th at p. 631; People v. Ledesma, supra, 39 Cal.4th at p. 679.)
d. Other circumstances
The trial court pointed out that there was an additional African-American juror who was not challenged by the prosecutor. This juror was excused for necessity. The prosecutor stated that she would not have challenged this juror, and the court found this statement credible. This circumstance supports the court's finding of no discrimination. (See generally People v. Cornwell (2005) 37 Cal.4th 50, 70 [concluding that a challenge raised no inference of bias, "particularly in view of the circumstance that the other African-American juror had been passed repeatedly by the prosecutor from the beginning of voir dire and ultimately served on the jury"].)
Appellant's trial counsel himself stated: "I do not believe that the intent of [the prosecutor] was racist. And I don't believe her intent was to deliberately exclude one sector of the community, but that's the effect. And it's my argument that what the Court should look at is the effect not the intent."
e. Conclusion
There is substantial evidence to support the prosecutor's race-neutral reasons for challenging each juror. The court found the prosecutor to be credible. We see no abuse of discretion in the trial court's denial of appellant's Wheeler motion.
2. Government Code section 70373 assessment
Appellant contends that the imposition of a $30 criminal conviction assessment pursuant to Government Code section 70373 violates ex post facto principles because the crime for which he was convicted occurred before the statute's effective date. He further contends that the Legislature did not intend the assessment to operate retroactively. We do not agree.
Appellant was convicted on December 14, 2009, eleven months after the statute's effective date of January 1, 2009. (See Stats. 2008, ch. 311.)
As the Third District Court of Appeal explained in rejecting a claim identical to appellant's claim, the language of the statute itself, by tying the imposition of the fee to a defendant's conviction, indicates that the fee was meant to be applied to any conviction that occurred after the statute's effective date. (People v. Castillo (2010) 182 Cal.App.4th 1410, 1413-1415.) Numerous Courts of Appeal have agreed. (See People v. Cortez (2010) 189 Cal.App.4th 1436, 1443-1444; People v. Lopez (2010) 188 Cal.App.4th 474, 478-480; People v. Mendez (2010) 188 Cal.App.4th 47, 60-61; People v. Phillips (2010) 186 Cal.App.4th 475, 477-479; People v. Davis (2010) 185 Cal.App.4th 998, 1000.)
We agree with the reasoning of Castillo, supra, as well, and reject appellant's claim for the reasons set forth in Castillo.
Disposition
The judgment is affirmed.
We concur: TURNER, P. J.KRIEGLER, J.