Opinion
NOT TO BE PUBLISHED
APPEAL from judgments of the Superior Court of Los Angeles County No. TA104229, Eleanor J. Hunter, Judge.
Catherine White, under appointment by the Court of Appeal, for Defendant and Appellant Roy Lee Harris.
Murray A. Rosenberg, under appointment by the Court of Appeal, for Defendant and Appellant Tracey L. Anders.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Paul M. Roadarmel, Jr., Supervising Deputy Attorney General, Daniel C. Chang, Deputy Attorney General, for Plaintiff and Respondent.
MOSK, Acting P. J.
INTRODUCTION
A jury convicted defendant and appellant Roy Lee Harris of home invasion robbery (Pen. Code, § 211 ), false imprisonment by violence (§ 236), and two counts of second degree robbery (§ 211). As to the home invasion robbery, the jury found true the allegations that Harris acted in concert and entered a structure within the meaning of section 213, subdivision (a)(1)(A) and that a principal personally was armed with a firearm within the meaning of section 12022, subdivision (a)(1). As to the second degree robberies, the jury found true the allegation that Harris personally used a firearm within the meaning of section 12022.53 subdivision (b). The trial court sentenced Harris to 27 years, eight months in state prison.
All further statutory citations are to the Penal Code unless otherwise noted.
The jury convicted defendant and appellant Tracey Lee Anders of home invasion robbery (§ 211), false imprisonment by violence (§ 236), possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a)), and giving false information to a police officer (§ 148.9, subd. (a)). As to the home invasion robbery, the jury found true the allegations that Anders acted in concert and entered a structure within the meaning of section 213, subdivision (a)(1)(A) and that Anders personally used a firearm within the meaning of section 12022.53, subdivision (b). The trial court found true the allegation that Anders suffered a prior conviction for which he served a term in prison. (§ 667.5, subd. (b).) The trial court sentenced Anders to state prison for 17 years, eight months.
The amended information also alleged that Anders suffered a prior conviction within the meaning of the “Three Strikes” law. (§§ 667, subds. (b)-(i) & 1170.12, subds. (a)-(d).) At the court trial on the prior conviction allegations, the prosecutor moved to dismiss the strike allegation on the ground that the prior conviction did not qualify because Anders was not yet age 16 at the time of the offense. (§ 667, subd. (d)(3)(A); 1170.12, subd. (b)(A).) The trial court did not rule on the motion, but also did not take evidence concerning the alleged strike conviction and did not make a finding on the allegation.
On appeal, Harris and Anders contend that the trial court erred when it denied their Wheeler/Batson motions concerning the prosecutor’s use of peremptory challenges to excuse six African-American female and one African-American male prospective jurors from the jury venire. Harris also contends that the trial court erred when it ordered him restrained in the courtroom. Harris purports to join Anders’s argument. Anders joins Harris’s arguments to the extent that they apply to him.
People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler); Batson v. Kentucky (1986) 476 U.S. 79 (Batson).
BACKGROUND
Malgorzata Jaworski and Michael Wawrzynowski owned and lived in a home in the Del Amo Estates Mobile Home Park in Rancho Dominguez. Jaworski and Wawrzynowski also owned Your Country Store, a store in the mobile home park. On February 29, 2008, Jaworski and her mother, Narcyza Krynska, were working at the store. Shortly after 10:00 a.m., Harris entered the store. Harris was armed with a gun and presented Jaworski with a plastic bag. Harris yelled at Jaworski and Krynska to put money in the bag. As Jaworski and Krynska placed money in the bag, Harris banged his gun on the counter and told the women to go faster. Harris took the money and left the store. Jaworski was uncertain how much money Harris took, but estimated the amount to be from $800 to $1,200. The incident was recorded by the store’s surveillance cameras.
At 8:30 p.m. on December 18, 2008, Jaworski and Wawrzynowski were home. Jaworski was in the kitchen cleaning and Wawrzynowski was in the bathroom installing a sink. As Wawrzynowski worked on the sink, Anders entered the bathroom, pointed a loaded revolver at Wawrzynowski, and said, “I want your money.” Wawrzynowski gave Anders $13 and his cellular telephone. Anders took the money and the cellular telephone and said, “I want more money and your wallet.”
As Wawrzynowski reached into his pocket, he saw an opportunity to grab Anders’s gun. Wawrzynowski grabbed the gun and a struggle for the gun ensued. Jaworski heard the struggle from the kitchen and went to investigate. As Jaworski reached the dining room, she saw Harris and shouted, “What are you doing here.” Harris grabbed Jaworski and covered her mouth, stopping her from shouting. Harris pulled Jaworski to the floor and held her there so she could not escape. Harris told Jaworski that he was not going to hurt her. At some point, Jaworski saw a third person enter the house and run down the hall.
Wawrzynowski succeeded in taking the gun from Anders. Anders yelled, “He’s got my gun.” Wawrzynowski attempted to shoot Anders, but the gun did not fire. Anders grabbed the gun and someone began hitting Wawrzynowski from behind. Anders and his companion struggled to take the gun from Wawrzynowski. Anders’s companion succeeded in taking the gun from Wawrzynowski and returned it to Anders. Anders and his companion ran from the house. When Wawrzynowski left the bathroom, he saw only Anders, whom he chased.
Harris released Jaworski and ran outside. Jaworski grabbed a telephone from the kitchen, ran after Harris, and called the police. As Jaworski was speaking with the police, Wawrzynowski ran up, took the telephone from Jaworski, and continued to pursue “them.” As Wawrzynowski spoke with the police, he spotted Anders and another person walking fast on the road. At some point, Wawrzynowski lost sight of Anders and his companion.
About that time, Joe Vasquez entered the mobile home park on his motorcycle. As he entered the park’s gate, Vasquez passed two men on foot. Vasquez continued into the park and encountered Wawrzynowski who said that he had just been attacked by two men. Wawrzynowski pointed in the direction from which Vasquez had just come. Vazquez turned around his motorcycle and pursued the men. Vasquez yelled for the men to stop, and the men ran and jumped into bushes in a “ditch area.” At trial, Vasquez identified Harris and Anders as the men who had run from him.
Vasquez flagged down Los Angeles County Deputy Sheriff Michael Allen who was responding to a call concerning an assault with a deadly weapon. Deputy Allen and other deputies ordered Harris and Anders to come out of the bushes. Harris complied, and the deputies detained him. Shortly thereafter, the deputies located and detained Anders. Anders told a deputy that his name was Jeremy Jeffery. A deputy searched Anders and found two baggies containing methamphetamine.
DISCUSSION
I. The Trial Court Properly Denied Defendants’ Wheeler/Batson Motions
Defendants contend that the trial court erred when it denied each of their five Wheeler/Batson motions that challenged the prosecution’s use of peremptory challenges to remove six African-American female and one African-American male prospective jurors from the jury venire. The trial court did not err.
A. Relevant Legal Principles
The state and federal Constitutions prohibit an advocate from using peremptory challenges to exclude jurors based on race. (People v. Lenix (2008) 44 Cal.4th 602, 612.) In Wheeler, supra, 22 Cal.3d 258, the California Supreme Court held that “the right to trial by a jury drawn from a representative cross-section of the community is guaranteed equally and independently by the Sixth Amendment to the federal Constitution and by article I, section 16, of the California Constitution.” (Id. at p. 272.) A prosecutor violates that right by using peremptory challenges to strike prospective jurors who are “members of an identifiable group distinguished on racial, religious, ethnic, or similar grounds, ” when the challenges are made “on the sole ground of group bias.” (Id. at p. 276.) The United States Supreme Court has held that a prosecutor’s discriminatory use of peremptory challenges violates a defendant’s right to equal protection under the Fourteenth Amendment to the United States Constitution. (Batson, supra, 476 U.S. at p. 88.)
A trial court employs a well-defined procedure for resolving a Wheeler/Batson motion. “The Batson three-step inquiry is well established. First, the trial court must determine whether the defendant has made a prima facie showing that the prosecutor exercised a peremptory challenge based on race. Second, if the showing is made, the burden shifts to the prosecutor to demonstrate that the challenges were exercised for a race-neutral reason. Third, the court determines whether the defendant has proven purposeful discrimination. The ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike. [Citation.] The three-step procedure also applies to state constitutional claims. [Citations.]” (People v. Lenix, supra, 44 Cal.4th at pp. 612-613; Johnson v. California (2005) 545 U.S. 162, 168.)
“Review of a trial court’s denial of a Wheeler/Batson motion is deferential, examining only whether substantial evidence supports its conclusions. (People v. Bonilla [(2007)] 41 Cal.4th [313, ] 341-342.) ‘We review a trial court’s determination regarding the sufficiency of a prosecutor’s justifications for exercising peremptory challenges “‘with great restraint.’” [Citation.] We presume that a prosecutor uses peremptory challenges in a constitutional manner and give great deference to the trial court’s ability to distinguish bona fide reasons from sham excuses. [Citation.] So long as the trial court makes a sincere and reasoned effort to evaluate the nondiscriminatory justifications offered, its conclusions are entitled to deference on appeal. [Citation.]’ (People v. Burgener (2003) 29 Cal.4th 833, 864 [129 Cal.Rptr.2d 747, 62 P.3d 1].) [Footnote omitted.]” (People v. Lenix, supra, 44 Cal.4th at pp. 613-614.)
In fulfilling its obligation to make a sincere and reasoned effort to evaluate the prosecutor’s explanation, “the trial court is not required to make specific or detailed comments for the record to justify every instance in which a prosecutor’s race-neutral reason for exercising a peremptory challenge is being accepted by the court as genuine. This is particularly true where the prosecutor’s race-neutral reason for exercising a peremptory challenge is based on the prospective juror’s demeanor, or similar intangible factors, while in the courtroom.” (People v. Reynoso (2003) 31 Cal.4th 903, 919.) “Inquiry by the trial court is not even required. (Id. at p. 920.) ‘All that matters is that the prosecutor’s reason for exercising the peremptory challenge is sincere and legitimate, legitimate in the sense of being nondiscriminatory.’ (Id. at p. 924.) A reason that makes no sense is nonetheless ‘sincere and legitimate’ as long as it does not deny equal protection. (Ibid.)” (People v. Guerra (2006) 37 Cal.4th 1067, 1100-1101, disapproved on another ground in People v. Rundle (2008) 43 Cal.4th 76, 151, disapproved on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)
B. The Trial Court Properly Denied Defendants’ First Wheeler/Batson Motion-Prospective Jurors Numbers 5, 7, and 12
1. Background
Prospective juror number 5 (juror 5), a veterinarian assistant for an animal hospital, lived in Long Beach, was single, and did not have any children. The only crime juror 5 had witnessed was a fight between co-workers. The police were not called with respect to the fight, but the matter generated a civil lawsuit in which juror 5 was called as a witness. Juror 5 described her experience in court as “long, ” and believed that the “whole reason for being there was stupid.” Juror 5 stated that that experience would not prevent her from being fair in this case. Juror 5 had not sat on a jury.
Juror 5 had an uncle who worked in law enforcement as a member of a SWAT team. Juror 5’s grandparents’ home had been burglarized. Juror 5’s stepfather had been arrested for or charged with gun possession, rape, and being an ex-felon with a firearm. Juror 5 saw her stepfather often, and had spoken with him about how he believed he was treated during his arrests. Juror 5’s stepfather had nothing positive to say about his treatment. The trial court asked if juror 5 believed anything her stepfather had told her would affect her ability to sit in judgment in this case. Juror 5 responded, “I guess not.” The trial court asked if juror 5 would have what her stepfather told her in the back of her mind when she considered police officer or civilian witness testimony. Juror 5 replied, “I don’t know-no.” The trial court asked if juror 5 thought she could separate the two. Juror 5 replied, “Probably.” The trial court asked juror 5, “Maybe not?” Juror 5 responded, “I think I could.”
Harris’s defense counsel challenged juror 5 for cause. The trial court denied the challenge stating, “She didn’t definitively say she could not be fair. And she says probably, I guess, and I even gave her an opportunity to think of something to come back and say. Unless she came back and said I cannot be fair, I don’t think it rises to the level for cause.”
Prospective juror number 7 (juror 7), a marketing manager, was married to an “IT” manager and had three children. Juror 7 served on juries in two criminal cases. The jury in one of the cases reached a verdict, and jury in the other case did not. Juror 7 had witnessed domestic violence 30 years before. The police were called and juror 7 believed the police handled the situation professionally.
Juror 7 had a cousin who was a police officer. Juror 7 had an uncle who was arrested for or charged with burglary and another uncle who was arrested for or charged with robbery. Although the offenses took place long in the past, both uncles remained in prison. Juror 7’s mother spoke with juror 7’s uncles every week. Juror 7 did not believe that what her uncles had gone through or what her mother told her about her uncles’ experiences would prevent her from being fair in this case.
Asked if she would automatically believe a police officer’s testimony over a defendant’s, juror 7 said that she would weigh the respective testimony in light of other evidence to determine which witness was truthful. Asked if she could hold out as a sole juror, juror 7 stated that she would like to believe that she would remain firm in her determination.
When the prosecutor asked the panel whether they could rely on the testimony of a single witness if they believed the witness, juror 7 said she “couldn’t judge on just that one testimony” if other circumstances cast doubt on the witness’s truthfulness. Asked if she would need more evidence, juror 7 said she would. Asked how much other evidence she would need, juror 7 replied, “Somebody else, something else. That alone would just would not do it.” The prosecutor told juror 7 to assume that she believed the witness, stated that under the law one witness can prove any fact if the witness is believed, and again asked juror 7 if one witness’s testimony would be enough. Juror 7 responded, “Yes. And for me there’s an assumption if I believe that witness.” The prosecutor said, “That was the hypothetical.” Juror 7 replied, “That’s the part I have a problem with because I’m just not someone who can just believe just that one person. Because you never know what the circumstances are and one wouldn’t be enough for me.” The prosecutor challenged juror 7 for cause on the ground that she said she would need more than testimony from a single witness to find a fact. The trial court denied the challenge.
Prospective juror number 12 (juror 12) worked for an HMO and as a clerk scheduler in a psychiatric clinic. Juror 12 was single and had an adult son who, juror 12 said, was both unemployed and working with her father. Juror 12 served on juries in two criminal cases. The jury reached a verdict in both cases. Juror 12 stated that if Harris’s defense counsel excused certain members of the jury venire she would not hold that against defense counsel. Juror 12 could reach a verdict based on the testimony of a single witness.
After the prosecutor used three out of her first four peremptory challenges to excuse jurors 5, 7, and 12, Anders’s defense counsel made a Wheeler motion on the grounds that all three prospective jurors were African-American women. Harris’s defense counsel also made a Wheeler/Batson motion. Anders’s defense counsel observed that the prosecutor’s fourth peremptory had been used to excuse prospective juror number 4, who was female, and stated, “I don’t know if the issue is black or female or if it’s just female. I’d like to make a federal motion under Batson.” The trial court found that defendants had stated a prima facie showing and asked the prosecutor to state the reasons for her peremptory challenges.
Because defendants’ appellate challenges to the trial court’s ruling on their Wheeler/Batson motions concern only jurors 5, 7, and 12, we have not provided information concerning prospective juror number 4’s background and do not provide the prosecutor’s reasons for excusing her.
As to juror 5, the prosecutor stated, “I think the defense even brought it up in a motion for cause that she had an issue with saying I think I can be fair. Her answers weren’t on her stepdad’s arrest history. And so not being sure whether she-I don’t think either. She couldn’t be negative or positive about the judicial system. [¶] I didn’t like her answer where she didn’t say affirmatively that she could be fair in this case. So as to that’s as to number five.”
As to juror 7, the prosecutor stated that she had “made a motion for cause because when I gave the one witness hypothetical she had issues with it. I asked her about, you know, whether she could be satisfied, if she would need more than one. I didn’t like her answer. She did keep changing my hypothetical. And because of that, number one, I did have some issues with it at first. [¶] But when she was able to come around and say that, yes, she would if she believed the witness, she wouldn’t need more evidence. And she could never affirmatively say that, so that’s the reason for number seven.”
As to juror 12, the prosecutor stated, “[F]irst of all, her position working in the psyche clinic, I just had an issue with that about whether or not she might be sympathetic towards the individuals. [¶] Also, not only when I asked her questions, but when the defense asked her, she was actually very quiet. She actually didn’t even give a verbal response. I think she was asked questions by both defense counsel, at least one time. It was nonverbal [sic] response. [¶] And when I asked her a question, her responses were short and she wasn’t very talkative. So again, with her I just didn’t feel like she was going to be a good fit in this jury.”
The trial court denied the Wheeler/Batson motion. The trial court found that the prosecutor presented race-neutral justifications for her peremptory challenges. The trial court did not address whether the prosecutor’s justifications also were gender-neutral. Defendants did not request such a ruling in the trial court and do not claim on appeal that the trial court’s ruling was deficient for failing to address the gender issue.
2. Discussion
Substantial evidence supports the trial court’s determination that the prosecutor excused jurors 5, 7, and 12 for reasons that were race and gender neutral. The prosecutor said she excused juror 5 because the prospective juror was unable to state that she could be fair in this case. The record supports the prosecutor’s reason. Juror 5’s stepfather had been arrested for or charged with gun possession, rape, and being an ex-felon with a firearm. Juror 5’s stepfather spoke to her about how he was treated during his arrests and had nothing positive to say. Juror 5 was equivocal about whether what her stepfather told her would affect her judgment as a juror and her ability to be fair. Harris’s defense counsel and the trial court recognized this “fairness” issue-Harris’s defense counsel challenged juror 5 for cause without stating a reason, and the trial court rejected the challenge on the ground that juror 5 did not state “definitively” that she could not be fair.
The prosecutor stated that she excused juror 7 because the prospective juror gave unsatisfactory responses to the prosecutor’s hypothetical questions concerning the sufficiency of one witness’s testimony, if believed, to support a conviction. The prosecutor noted that juror 7 changed the prosecutor’s hypothetical and was unable to say that the testimony of a single witness, if believed, was sufficient without other evidence. The record supports the prosecutor’s reason. When the prosecutor specifically told juror 7 that she was to assume that the single witness in the hypothetical was telling the truth, juror 7 responded, “That’s the part I have a problem with because I’m just not someone who can just believe just that one person. Because you never know what the circumstances are and one wouldn’t be enough for me.” Later, after having said that she could rely on the testimony of a single witness whom she believed, juror 7 repeated, “I’m just not someone who can just believe just that one person. Because you never know what the circumstances are and one wouldn’t be enough for me.” The testimony of a single witness is sufficient to support a conviction unless it is physically impossible or inherently improbable. (People v. Young (2005) 34 Cal.4th 1149, 1181.) Juror 7’s resistance to this legal principle was a race and gender neutral basis for the prosecutor to excuse juror 7.
The prosecutor stated that she excused juror 12 because she worked in a psychiatric clinic and thus might be sympathetic to defendants. The prosecutor further stated that she excused juror 12 because the prospective juror was “very quiet” and not “talkative” in her responses to questions leading the prosecutor to believe that juror 12 would not be a “good fit” with the other jurors. The prosecutor’s reasons are race and gender neutral.
Harris contends that the prosecutor’s stated reasons for excusing jurors 5, 7, and 12 were either unsupported by the record or implausible because they equally applied to other non-excused prospective jurors. As to any comparative analysis argument, “the question is not whether we as a reviewing court find the challenged prospective jurors similarly situated, or not, to those who were accepted, but whether the record shows that the party making the peremptory challenges honestly believed them not to be similarly situated in legitimate respects.” (People v. Huggins (2006) 38 Cal.4th 175, 233.)
When a defendant makes a comparative analysis claim for the first time on appeal, “[t]he reviewing court need not consider responses by stricken panelists or seated jurors other than those identified by the defendant in the claim of disparate treatment.” (People v. Lenix, supra, 44 Cal.4th at p. 624; People v. Cruz (2008) 44 Cal.4th 636, 659 & fn. 5.) Comparative juror analysis is not conclusive, but rather one factor to consider. It “is but one form of circumstantial evidence that is relevant, but not necessarily dispositive, on the issue of intentional discrimination.” (People v. Lenix, supra, 44 Cal.4th at p. 622.)
As to these jurors, defendants only compare juror 1, who was seated, with juror 7. Defendants contend juror 1 agreed with juror 7 in connection with the one-witness hypothetical, and not affirmatively saying she would follow the law. Juror 1 and juror 7 did not share the same view with respect to the sufficiency of a single witness’s testimony to convict. Although juror 7 at one time said she could rely on the testimony of one witness, ultimately she said that “one wouldn’t be enough for me.” Juror 1, on the other hand, while not unreservedly embracing the one witness concept initially, ultimately stated, “If I believe that what he or she saw, she was the only person, then I probably would go with it. But I have to hear it first, what exactly did transpire from A to Z.” Fairly construed, juror 1 stated that he could convict on the testimony of a single witness if, after having considered all the evidence, he believed the one witness’s testimony.
Excusing a juror because of her inability to put aside personal beliefs in not discriminatory. (People v. Guerra, supra, 37 Cal.4th at p. 1102.) Although a prospective juror might claim that she could be fair, based on the juror’s responses, the prosecutor justifiably may have been concerned with the juror’s views on the police or judicial system and challenged the juror on that basis. (Ibid.)
C. The Trial Court Properly Denied Defendants’ Second Wheeler/Batson Motion-Prospective Juror Number 18
1. Background
Prospective juror number 18 (juror 18), an automotive parts store keeper, was married to a school teacher and had three children all of whom were under the age of 18. Juror 18 served on a jury in a criminal case, and the jury reached a verdict. Juror 18 had never witnessed or been the victim of a crime. Asked if he had any thoughts about the presumption of innocence, juror 18 stated that he had served on a jury and believed that he understood the process.
The prosecutor used her seventh peremptory challenge to excuse juror 18. Harris’s defense counsel made a Wheeler/Batson motion on the basis that juror 18 was an African-American male and that four of the prosecutor’s seven peremptory challenges had been used against African-American prospective jurors-jurors 5, 7, 12, and 18. Anders’s defense counsel joined Harris’s motion. Without expressly finding that defendants had made a prima facie showing, the trial court requested the prosecutor to explain her reasons for excusing juror 18.
We infer from the context of the trial court’s request of the prosecutor and the trial court’s subsequent analysis of the reasons provided by the prosecutor that the trial court made such a finding. (People v. Taylor (2010) 48 Cal.4th 574, 612.)
The prosecutor stated that she was “struck” by the length of juror 18’s dreadlocks. The prosecutor described juror 18’s dreadlocks as having to be tied into knots because they more than reached the floor. In the prosecutor’s stated view, a person who wears his hair in such a manner “sticks out” and does not conform to societal norms. The prosecutor stated that she wanted the jury to be a “cohesive group” made of up persons “of the same, kind of fall into societal norms.”
Anders’s defense counsel stated, “Ethic [sic] thing, ” apparently contending that prosecutor’s reason was based on juror 18’s ethnicity. The prosecutor responded that she believed that such “extremely long” hair was a “very blatant display of appearance.” Anders’s defense counsel stated that juror 18 was a married man with children and, apart from the “dreads, ” he did not see any “radicalness” in juror 18. Harris’s defense counsel disputed the prosecutor’s characterization of the length of juror 18’s hair. Harris’s defense counsel argued that juror 18’s hair style conformed to societal norms because it was a religious choice. Harris’s defense counsel observed that juror 18 was “very articulate, ” “very well groomed, ” and “very cooperative” during jury selection.
The trial court denied defendants’ Wheeler/Batson motion. The trial court stated that juror 18 “was well groomed and but I guess if you go by someone’s hairstyle, I don’t see anybody else with that type of hairstyle.” The trial court observed that if the prosecutor did not excuse another prospective juror with the same hairstyle, the argument could be made that her reason was not genuine. The trial court stated its belief that hair worn in dreadlocks was not a “protective class.”
2. Discussion
The prosecutor’s concerns about appearance were sufficiently race-neutral. “[A] prosecutor may fear bias on the part of [a] juror... because his clothes or hair length suggest an unconventional lifestyle.” (People v. Wheeler, supra, 22 Cal.3d at p. 275; see People v. Ayala (2000) 24 Cal.4th 243, 265 [prosecutor “mentioned... idiosyncratic dress and demeanor”]; Purkett v. Elem (1995) 514 U.S. 765, 769 [“proffered explanation... that he struck juror number 22 because he had long unkempt hair, a mustache, and a beard-is race neutral [and a] nondiscriminatory reason for the strike”].)
D. The Trial Court Properly Denied Defendants’ Third Wheeler/Batson Motion-Prospective Juror Number 35
1. Background
Prospective juror number 35 (juror 35), a United States Postal Service worker, was single, lived in Compton, and had an 18-year-old son who was no longer a student and was “trying to decide what he wants to do.” Juror 35 served on a jury in a civil case, and the jury reached a verdict. Juror 35 had never witnessed or been the victim of a crime. Juror 35’s brother was in jail for murder. The case was prosecuted in Los Angeles County. Juror 35 stated that her brother believed he was treated fairly, that “it was a mistake, so he was okay with it.” Juror 35 stated that there was nothing about her brother’s “situation” that would prevent her from being fair. Juror 35 stated that she would need more than the testimony of one witness whom she believed to determine whether a person was guilty.
The prosecutor used her ninth peremptory challenge to excuse juror 35. Anders’s defense counsel, joined by Harris’s defense counsel, made a Wheeler/Batson motion on the ground that the challenged prospective juror was an African-American female. Without making an express finding that defendants had made a prima facie showing, the trial court asked the prosecutor to explain why she excused the challenged juror.
See footnote 5, above.
The prosecutor explained that she primarily excused juror 35 because the prospective juror wore sunglasses in the court hallway although she was indoors causing the prosecutor to believe that juror 35 had an “attitude.” The prosecutor added that juror 35 worked for the United States Postal Service and that she previously had had bad experiences with Postal Service workers. Finally, juror 35’s son was not employed and was trying to figure out what he wanted to do.
Anders’s defense counsel stated that he did not perceive any demeanor issue with juror 35 and requested the trial court to declare a mistrial and call for a new jury pool. Harris’s defense counsel joined the requests. The trial court stated that it had not been in the hallway so it had not seen juror 35 wearing sunglasses and it had not noticed anything about the prospective juror’s demeanor. The trial court denied defendants’ Wheeler/Batson motion, finding the prosecutor’s stated reasons, particularly the prosecutor’s reliance on juror 35’s employment with the United States Postal Service, to be race neutral.
2. Discussion
Although the prosecutor’s belief that juror 35 had an “attitude” was a legitimate basis for excusing the prospective juror (People v. Reynoso, supra, 31 Cal.4th at p. 917), the prosecutor’s belief that juror 35 had an attitude was based on juror 35 wearing sunglasses in the hallway outside of the courtroom. The trial court specifically stated that it had not observed juror 35 in the hallway, and thus could not judge the genuineness of the prosecutor’s explanation.
Apart from her excusing juror 35 because of her perceived attitude, the prosecutor excused the prospective juror due to her employment with the United States Postal Service. The prosecutor stated that she previously had had bad experiences with United States Postal Service workers. A prospective juror’s occupation is a permissible nondiscriminatory reason for excusing the prospective juror. (People v. Reynoso, supra, 31 Cal.4th at pp. 924-925; People v. Trevino (1997) 55 Cal.App.4th 396, 411; People v. Landry (1996) 49 Cal.App.4th 785, 790-791.)
It should be noted that at the time of the challenges, there were six females and five males on the jury. There were three African-American jurors, two of whom were female.
E. The Trial Court Properly Denied Defendants’ Fourth Wheeler/Batson Motion-Prospective Juror Number 22
1. Background
Prospective juror number 22 (juror 22), worked in customer service, lived in North Long Beach, was married, and had no children. Juror 22’s husband, a maintenance worker, was unemployed. Juror 22 had not served on a jury. Juror 22 had never witnessed or been the victim of a crime. The presumption of innocence had no meaning for juror 22.
As juror 22 was taking a seat on the jury panel, the trial court asked if she was limping. The prosecutor, at side bar, stated that juror 22 obviously was in pain. The trial court said to juror 22 that it appeared that she was in pain when she walked and asked if the pain would affect her ability to serve as a juror or would distract her from listening to the evidence. Juror 22 responded, “No.”
The prosecutor used her 10th peremptory challenge to excuse juror 22. When juror 22 was excused, the trial court stated, “Stop it. Don’t be so happy.” Harris’s defense counsel, joined by Anders’s defense counsel, made a Wheeler/Batson motion and asked the trial court to declare a mistrial on the ground that the prosecutor had excused another African-American juror. Without making an express finding that defendants had made a prima facie showing, the trial court asked the prosecutor to explain why she excused juror 22.
Although the trial court observed that juror 22 also was a female, neither defense counsel objection that the prosecutor excused the prospective juror on the basis of her gender.
See footnote 5, above.
The prosecutor stated that she excused juror 22 because juror 22 worked in customer service, her husband was unemployed, and she apparently had an injured foot that caused her to limp. With respect to juror 22’s injured foot, the prosecutor stated that juror 22 “was excited to be off the jury and moved quite quickly, more quickly than she did coming in.”
With respect to juror 22’s occupation, defense counsel for Anders and Harris argued that there were other unexcused members of the panel whose family members were unemployed or who worked in customer service. The prosecutor stated there were no other persons on the jury venire who had an unemployed spouse and that she had excused juror 35 in part because juror 35’s son was unemployed. The prosecutor further stated that she had excused a Caucasian female juror, prospective juror number 28, who appeared to have an injured foot.
The trial court denied defendants’ Wheeler/Batson motion. The trial court expressed concern over the number of African-American prospective jurors that the prosecutor had excused. The trial court stated that it had to consider whether the prosecutor offered a race-neutral reason for excusing a prospective juror and whether the reason was genuine. In determining the genuineness of the proffered reason, the trial court was to perform a comparative analysis between the prospective jurors on the panel and those who were excused.
The trial court found that the prosecutor’s reliance on juror 22’s occupation in customer service was race-neutral. The trial court observed that it did not “quite” understand the reasons, but that it was not for the trial court to “understand or not understand.” As to the prosecutor’s injury justification, the trial court noted the prosecutor’s argument that she had excused prospective juror number 28, a Caucasian female juror, because the prospective juror had a foot injury. As to the justification that juror 22’s husband was unemployed, the trial court stated that other prospective jurors who had been excused were unemployed or had spouses that were unemployed. The trial court stated, “I’m looking now at my jurors that remain with us. I don’t see anyone else in either a postal capacity or a community or a customer service capacity, nor do I see anybody else either themselves or a loved one that is unemployed.”
2. Discussion
The prosecutor’s reason for excusing juror 22 on the basis that she worked in the customer service field was nondiscriminatory. In People v. Reynoso, supra, 31 Cal.4th at pages 924-925, the Supreme Court said, “If a prosecutor can lawfully peremptorily excuse a potential juror based on a hunch or suspicion, or because he does not like the potential juror’s hairstyle, or because he observed the potential juror glare at him, or smile at the defendant or defense counsel, then surely he can challenge a potential juror whose occupation, in the prosecutor’s subjective estimation, would not render him or her the best type of juror to sit on the case for which the jury is being selected.” (Fn. omitted, italics added.)
That juror 22’s apparent foot pain might be a distraction was another nondiscriminatory reason given by the prosecutor. The prosecutor noted she also excused a female Caucasian juror because she exhibited a foot injury.
The trial court dealt with the comparative analysis as follows: “I think that’s when you come into a comparative type analysis and in looking at the totality of the venire and reasons given, the justification given, with regard to other juror members or potential panelists that are still on the panel. [¶] With regard to the first question, race neutral justifications, I think that [the prosecutor] has satisfied that with regard to the customer service. I don’t quite understand it, but it’s not for me to understand or not understand. [¶] With regard to the inquiry to juror number 22, that was actually noted yesterday, or Friday. [¶] And then with regard to the unemployment issue, there has been a couple of other jurors who have either themselves or spouses that are unemployed that there has been an exercise of peremptory challenge. [¶] And then with regard to the inquiry, I believe the female white was kicked. And [the prosecutor] has represented that was maybe one of the thought processes with regard to her. [¶] I’m looking now at my jurors that remain with us. I don’t see anyone else in either a postal capacity or a community or a customer service capacity, nor do I see anybody else either themselves or a loved one that is unemployed.”
The trial court is in the best position to make this comparative analysis. (People v Lenix, supra, 44 Cal.4th at p. 624.) With respect to juror 22 and the comparative analysis regarding jurors 13 and 34, defendants argue that the trial court did not appear to consider that jurors 13 and 34 were similarly situated. Harris made the argument in the trial court, and the trial court factually rejected the argument; thus, the trial court considered the argument.
F. The Trial Court Properly Denied Defendants’ Fifth Wheeler/Batson Motion-Prospective Juror Number 40
1. Background
During voir dire, prospective juror number 40 (juror 40) told the trial court at side bar that she had a “possession” conviction that had been “expunged” through the Proposition 36 program over five years earlier. Juror 40 also told the trial court that she had been “involved in” a “home invasion” “at gunpoint” that resulted in a murder. During that incident, juror 40 ran for her life and had not been the same since. Juror 40 knew the perpetrators and the victim and testified in the matter. Juror 40 indicated that she could be fair in this case, but stated that sitting on the jury in this case would not be fair to her given her frightening memories of the prior case. Juror 40 stated that she had five adult children and that two of her sons were in prison for unknown crimes. Juror 40 did not raise her incarcerated sons and had no “affiliation” with them. Juror 40 informed the trial court that her employer did not pay for jury service and that she was using her vacation pay to serve, causing her a financial hardship. Despite that financial hardship, however, juror 40 could be fair. Juror 40 also expressed concern that she might lose her job if her jury service was too long.
Back in open court, juror 40 stated that she was employed as a warehouse clerk, she was 40 years old, she lived in Compton, and she had five children. Juror 40 had not served on a jury. Juror 40’s daughter lived and worked in Oceanside. Two of juror 40’s sons lived in New Jersey, one of whom was an ex-Marine who worked for the Board of Education.
The prosecutor used her 11th peremptory challenge to excuse juror 40. Harris’s defense counsel, joined by Anders’s defense counsel, “renewed” his Wheeler/Batson motion. Without making an express finding that defendants had made a prima facie showing, the trial court asked the prosecutor to explain why she excused juror 40.
Defense counsel did not state the basis for their motion. While the record affirmatively reflects that juror 40 was a female, is does not so reflect that she was African-American. Arguably, one can infer that juror 40 is African-American based on defense counsel “renewing” their Wheeler/Batson motion that was based primarily on the excused jurors’ race and on the trial court’s finding, in part, that the prosecutor exercised her peremptory challenge in a “race” neutral manner.
See footnote 5, above.
The prosecutor stated that juror 40 “was the victim of attempted murder of [sic] she hadn’t been the same since. [¶] And she was a witness on a murder. Not to mention other conduct with the law enforcement herself. And then her kids in prison. [¶] I don’t think that this-particularly especially since she was a victim to this crime, that she should she not be sitting on this jury.” The trial court denied the Wheeler/Batson motion. Based on juror 40’s sidebar responses, the trial court found that the prosecutor excused juror 40 for race and gender neutral reasons.
2. Discussion
The prosecutor’s reliance on juror 40’s prior contact with law enforcement and the incarceration of the prospective juror’s two sons were legitimate reasons for excusing the prospective juror having nothing to do with group bias. (People v. Turner (1994) 8 Cal.4th 137, 170-171 [prospective juror’s negative experience with law enforcement supports challenge], overruled on another ground in People v. Griffin (2004) 33 Cal.4th 536, 555, fn. 5; People v. Cummings (1993) 4 Cal.4th 1233, 1282 [criminal conviction of prospective juror’s relative supports challenge].) Substantial evidence supports the trial court’s conclusion that the prosecutor excused juror 40 for legitimate reasons, and the trial court was under no duty to inquire further. (People v. Lenix, supra, 44 Cal.4th at pp. 613-614; People v. Guerra, supra, 37 Cal.4th at pp. 1100-1101; People v. Reynoso, supra, 31 Cal.4th at p. 919.)
G. Conclusion
The impaneled jury consisted of eight females and four males. There were three African-Americans, two Asians, four Hispanics, and three Caucasians among the jurors. Two of the African-American jurors were females and one was a male. The two alternate jurors were African-American females.
Under the deferential standard of review accorded a trial court’s conclusion based on circumstantial evidence (People v. Lenix, supra, 44 Cal.4th at pp. 627-628) and “[b]ased on the totality of the evidence, the prosecutor’s stated reasons for excusing [the jurors] are fully supported.” (Id. at p. 631.)
II. The Trial Court Did Not Abuse Its Discretion When It Ordered Harris Restrained At Trial
Harris contends that the trial court violated his state and federal rights to due process and to counsel when it ordered him restrained at trial.
We disagree.
A. Standard of Review
A trial court’s order that a defendant be restrained at trial is reviewed for an abuse of discretion. (People v. Mar (2002) 28 Cal.4th 1201, 1217; Spain v. Rushen (9th Cir. 1989) 883 F.2d 712, 716.)
B. Background
During voir dire, outside the presence of the prospective jurors, the trial court stated that Deputy Pastrano had information concerning an incident with Harris that morning. The trial court placed Deputy Pastrano under oath and asked the deputy to state what had happened. Deputy Pastrano said that as Harris walked out of the “tank” in the main lock-up, Harris faced one of the deputies and said that as soon as the trial was over he was going to “get him.”
When Deputy Pastrano and other deputies heard what Harris said, the deputies ordered Harris to turn around and face the wall so that they could handcuff him and place him in a holding tank. Harris refused to comply. When the deputies approached Harris, he said, “Don’t even fucking try.” The deputies placed their hands on Harris. Harris “tensed up” and tried to fight the deputies. The deputies “escorted” Harris to the ground, handcuffed him, and “put him away.”
The trial court asked Harris’s defense counsel if he wanted to be heard. Defense counsel stated that the matter was “basically” a misunderstanding between Harris and a deputy. Defense counsel stated that the previous day the deputy had handcuffed Harris too tightly. According to defense counsel, Harris denied threatening the deputy and only told the deputy to stay away. Defense counsel informed the trial court that Harris had a bump over his eye.
The trial court addressed Harris. The trial court stated that Harris was agitated and “acting up” in court the previous day. The trial court stated that it had told Harris’s defense counsel to tell Harris to calm down in court. The trial court asked Harris to calm down and advised him that any misbehavior in court would hurt his defense.
Based on Deputy Pastrano’s representations, the trial court ordered that Harris be restrained in a manner that the jury would not be able to see such restraint. The trial court “proposed” that Harris be restrained by a waistband that would be attached to the back of a chair. The waistband would be concealed from the jury’s view by Harris’s clothes. The trial court stated that defense counsel would be given the opportunity to view the waistband once in place to make any objections before the jury was brought out.
Defense counsel objected that Harris did not need to be restrained in any manner and that the proposed restraint would violate Harris’s federal due process rights. Defense counsel stated that he and Harris had been working “very well together” and that Harris would be “aware of” restraints during trial and that restraints would lower Harris’s dignity and self-respect. The trial court stated that restraints were necessary for courtroom safety and were the least restrictive means of achieving that end. The trial court based its ruling on Harris’s out-of-court conduct and demeanor as related by Deputy Pastrano and Harris’s in-court demeanor that the trial court characterized as “agitated” and “bubbling up.”
Before voir dire resumed, Harris was restrained in a chair with a strap around his waist. The trial court asked Harris’s defense counsel whether the strap was visible from any angle. Defense counsel responded that it was not, but renewed his objection to the restraint. The trial court acknowledged that defense counsel objected to Harris being restrained at any time during trial. The trial court noted that Harris was not handcuffed.
Later that day, after the jury had been selected, the trial court stated to Harris, outside the presence of the jurors, “I suggest that you calm down. I’m watching you right here. My bailiff takes off the one handcuff. You fling your arm aside. You push your chair in and you kind of push it out. I’m going to suggest, this is my second warning to you, that you stop it. I understand what [defense counsel] says. You’re frustrated. It is a frustrating proceeding to go through, but you are making it worse. And I’m watching it right before my eyes. So I am begging you do not act up again.”
Defense counsel stated that Harris told him that “part of this” had to do with the deputies handcuffing Harris too tightly the previous day and again that morning. Defense counsel stated that there were red marks on Harris’s wrists. The trial court stated that it had been watching how Harris had been conducting himself and that it would not “put up with it.” The trial court told defense counsel that if there was any ambiguity in its prior orders, he should speak with Harris and bring any questions Harris might have to the trial court’s attention. The trial court suggested that if Harris’s conduct continued, Harris might forfeit his right to remain in the courtroom. The trial court confirmed with defense counsel that Harris’s belt restraint was not visible.
The next day, during a break outside of the jury’s presence, defense counsel stated, “I just wanted, for the record, you cannot see the restraint, but there’s going to be a continuing objection throughout the trial. I feel like this doesn’t need to continue after yesterday.” The trial court denied the objection stating, “[T]he restraint will continue based on his conduct both in court and out of court and what the Court has personally seen.” Defense counsel stated that Harris had been calm that day and requested that Harris “at least be allowed unhandcuffed, so he can assist and write things down for me during cross-examination.” The trial court stated that it would take up the matter after the noon recess.
After the recess, defense counsel stated that he wanted to bring up the “pencil issue, ” arguing that Harris had been unable to assist him during cross-examination because Harris did not have a pencil. The trial court asked Deputy Pastrano why Harris was not permitted to have a pencil. Deputy Pastrano stated that Harris could use a pencil as a weapon and he did not believe it would be safe for the “Court, especially for the defense attorney, ” to allow Harris to have a pencil based on the previous day’s “events” and Harris’s conduct. The trial court agreed that Harris posed a danger. The trial court stated that defense counsel would be allowed to spend extra time to speak with Harris and the trial court would do what was necessary to allow Harris to assist in his defense. Defense counsel stated that he was sitting next to Harris and he did not have an issue with Harris having a pencil. The trial court stated that Harris was about 10 feet from the court clerk who did not have a partition and was “incredibly vulnerable.”
Later, defense counsel inquired of the trial court how it would address the restraint issue if Harris testified. The trial court stated that Harris would be brought to the witness stand and secured to a chair outside of the jury’s presence. The trial court would ensure that the jury could not see the belt restraint. After Harris testified, the trial court would take a break, apparently so Harris could be returned outside the jury’s view to his place at counsel table. Defense counsel objected.
When Harris decided to testify, defense counsel again objected, arguing that the jury would not see Harris walk to the witness stand and that there would be breaks before and after Harris’s testimony. Defense counsel argued that the contemplated arrangements would undermine the dignity of the court, impair Harris’s ability to assist in his defense, and interfere with Harris’s “ability to show the presumption of innocence to the jury.” Citing security reasons, the trial court denied the objection. Harris was seated in the witness stand and defense counsel confirmed that the belt restraint was not visible. The court clerk swore in Harris while Harris was seated in the witness stand.
Prior to Harris’s testimony the following day, defense counsel again objected to Harris being “shackled and not able to walk up to the defense table and the other previous objection.” After Harris’s testimony concluded, Harris was returned to his seat and defense counsel confirmed that Harris’s shirt covered the belt restraint.
C. Application of Relevant Legal Principles
“‘[A] defendant cannot be subjected to physical restraints of any kind in the courtroom while in the jury’s presence, unless there is a showing of a manifest need for such restraints.’ [Citation.]” (People v. Mar, supra, 28 Cal.4th at p. 1216.) “‘Manifest need’ arises only upon a showing of unruliness, an announced intention to escape, or ‘[e]vidence of any nonconforming conduct or planned nonconforming conduct which disrupts or would disrupt the judicial process if unrestrained....’ [Citation.] Moreover, ‘[t]he showing of nonconforming behavior... must appear as a matter of record....’ [Citation.]” (People v. Cox (1991) 53 Cal.3d 618, 651, disapproved on another ground in People v. Doolin, supra, 45 Cal.4th at p. 421, fn. 22.) “[E]ven when special court security measures are warranted, a court should impose the least restrictive measure that will satisfy the court’s legitimate security concerns.” (People v. Mar, supra, 28 Cal.4th at p. 1206.) In determining whether restraints are necessary, a trial court must base its determination on facts. (People v. Cox, supra, 53 Cal.3d at pp. 651-652.) “[C]ourtroom shackling, even if error, [is] harmless if there is no evidence that the jury saw the restraints, or that the shackles impaired or prejudiced the defendant’s right to testify or participate in his defense.” (People v. Anderson (2001) 25 Cal.4th 543, 596.)
Federal courts in California apply a similar “compelling circumstances” standard for determining whether a trial court’s decision to restrain a defendant violates federal due process rights. (Castillo v. Stainer (9th Cir. 1992) 983 F.2d 145, 147.) Under the federal standard, a state trial court must assess the “limitations” presented by the use of shackles, including reversal of the presumption of innocence, impairment of the defendant’s mental ability, impeding communication between the defendant and his counsel, detraction from the decorum of the trial, and pain. (Ibid.) “‘After considering these factors, the trial judge “must weigh the benefit and burdens of shackling against other possible alternatives.”’ [Citations.]” (Ibid.) Where the jury does not see a defendant’s restraint, any error in ordering the restraint is harmless beyond a reasonable doubt. (Id. at p. 149.)
Harris contends that there was no showing of a manifest need to restrain him-he denied threatening a deputy and his “minor altercation” with a deputy in the lockup and his courtroom agitation were caused by his “understandable” dissatisfaction with the manner in which the deputies handcuffed him. Harris contends that apart from the “single altercation” and after the trial court ordered him restrained, he “remained cooperative throughout the entire course of the trial.”
Based on Harris’s conduct, the trial court properly ordered Harris restrained. The record demonstrates that during voir dire Harris engaged in courtroom behavior that the trial court described as “acting up” and displayed a demeanor that the trial court described as “agitated.” The following day, while in the lockup, Harris threatened to “get” a deputy, refused to comply with the deputies’ order to face the wall so that he could be handcuffed, and tried to fight deputies when they attempted to control him. Harris’s conduct in the lockup demonstrated Harris’s willingness to resist violently proper orders from those charged with courthouse security and thus cannot correctly be described as a “minor altercation.” Harris’s contention that he “remained cooperative” in court after the trial court ordered him restrained is incorrect. After Deputy Pastrano brought Harris’s lockup conduct to the trial court’s attention, the trial court admonished Harris to calm down and ordered Harris restrained. Thereafter, Harris again acted up in court, flinging his arm to the side and pushing his chair as the bailiff removed his handcuffs.
Harris next contends that by ordering him to be belted to a chair and to remain in handcuffs the trial court failed to use the least restrictive means of restraining him. Harris asserts that an order that the deputies loosen his handcuffs would have resolved his “inappropriate” but “understandable” behavior. Harris misstates the trial court’s order. The trial court did not order Harris to remain in handcuffs, only that he be belted to a chair. When voir dire resumed after the trial court ordered Harris restrained, the trial court specifically stated that Harris was not in handcuffs. Defense counsel never objected that Harris was handcuffed in front of the jury-indeed, the courtroom incident that took place after the jury was selected occurred as the bailiff was removing Harris’s handcuffs. At one point, defense counsel asked that Harris “be allowed unhandcuffed” so that Harris could write things down and assist defense counsel in cross-examination. The trial court stated that it would consider the request after a recess, but defense counsel did not raise the issue again. Based on Harris’s conduct in the lockup and in the courtroom, the trial court did not abuse its discretion in concluding that a belt restraint was the least restrictive means of dealing with Harris’s unruly behavior and maintaining courtroom security.
Harris further contends that the belt restraint interfered with his federal constitutional rights to the presumption of innocence and to counsel because the restraint was not justified by a showing of manifest need. We reject Harris’s contention, having determined above that there was a sufficient showing of manifest need.
Finally, as defense counsel repeatedly acknowledged, the belt restraint was not visible to the jury. Accordingly, even if the trial court abused its discretion in ordering defendant restrained, any such error was harmless. (People v. Anderson, supra, 25 Cal.4th at p. 596; Castillo v. Stainer, supra, 983 F.2d at p. 149.)
DISPOSITION
The judgments are affirmed.
We concur: KRIEGLER, J., KUMAR, J.
Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.