Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County Los Angeles County Super. Ct. No. TA080454, Steven C. Suzukawa, Judge.
Waldemar D. Halka, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Michael C. Keller and Allison H. Chung, Deputy Attorneys General, for Plaintiff and Respondent.
ZELON, J.
Jeremy Harrison appeals from the judgment following his jury conviction for one count of murder and one count of attempted willful, deliberate, and premeditated murder. The jury also found related gun use enhancement allegations true. Appellant contends the trial court erred in failing to instruct the jury on proximate cause where there was evidence of multiple shooters and in denying his motion to suppress evidence based on his allegedly unlawful arrest. He further argues that the prosecutor exercised group bias in excusing seven African-American prospective jurors in violation of Batson-Wheeler and thus the trial court erred in denying the Wheeler motion.
Batson v. Kentucky (1986) 476 U.S. 79; People v. Wheeler (1978) 22 Cal.3d 258.
Although CALCRIM No. 3150 does not use the term “proximate cause,” the verdict form used by the jury for the special firearm use enhancement, which tracks the language of Penal Code section 12022.53, subdivision (d), includes the term. (See generally Use Note to CALJIC No. 17.19.5 (Spring 2007 ed.) p. 1252 [“‘Proximate’ appears in the statute but has since People v. Roberts [(1992) 2 Cal.4th 271, 313] been disfavored for jury instructions”].)
Batson v. Kentucky (1986) 476 U.S. 79; People v. Wheeler (1978) 22 Cal.3d 258.
We conclude the trial court prejudicially erred in failing to instruct the jury on proximate cause. Accordingly, we reverse as to count I and remand.
FACTS AND PROCEEDINGS BELOW
On July 31, 2005, at about 10:10 p.m., Dayon Garrison drove his car into the Valero gas station at the corner of Rosecrans Avenue and Figueroa Street and parked by a gas pump. Patrick Leonard was in the front passenger seat and Keyon Thomas was in the back passenger seat. Leonard got out of the car and walked to the convenience store window at the gas station. Garrison also got out of the car and walked to the restroom. Thomas remained seated in the backseat. When Garrison returned to the car, Leonard was back in the front passenger seat.
About 15 to 20 seconds later, a man wearing a black hat and a dark t-shirt approached the car from the passenger-side. He screamed, stuck his arm inside the passenger window, and fired seven to eight shots into the interior of the car. Garrison grabbed a handgun from the middle console, got out of the car, and began shooting back at the assailant. He fired between nine and 11 shots. The assailant fled on foot. The assailant did not appear to be injured as he ran away. The jury saw a gas station surveillance video depicting the shooting.
Garrison got back into the car and drove away. As he was driving, he realized Leonard had been shot in the head. Thomas had been shot five times, including in the face, arms, and right leg.
Leonard received seven gunshot wounds, including one to the head. The head wound was fatal. The fatal shot entered the back of Leonard’s head, behind the left ear, and penetrated his skull with a back-to-front trajectory. Four of Leonard’s bullet wounds had a back-to-front trajectory. The deputy coroner was unable to situate Leonard’s body in relation to the shooter.
Garrison crashed his car near the corner of Redondo Boulevard and Avalon Boulevard. Law enforcement and paramedics arrived at the crash site. Thomas was treated at the scene and then taken to the hospital. Presumably, Leonard was pronounced dead at the crash site.
The police recovered two bullet casings from inside the car. An additional bullet casing was found outside the driver’s door on the street surface.
Garrison directed the police to the Valero gas station where the shooting occurred. He was unable to describe the assailant’s facial features, but told the police the assailant was wearing a blue or black shirt and a black hat. Garrison was then taken to the police station for questioning. He denied returning fire. Garrison also failed to identify appellant’s photo in a six-pack photographic lineup.
Meanwhile, at the Valero gas station police found 13 expended bullet cartridges in the area of the gas station. The police collected multiple blood samples from the gas station parking lot, as well as from 185 feet away from the gas station along the east sidewalk of Figueroa Street.
Early in the morning on August 1, 2005, Los Angeles Police Department officers went to Gardena Memorial Hospital in response to a call from the hospital regarding a gunshot victim. The victim was appellant, who had suffered gunshot wounds to both upper legs and to his right arm. He told officers he had been shot from a black Suburban SUV while walking westbound on 120th Street, east of Avalon Boulevard. He explained, after he sustained the gunshots, he walked to Avalon Boulevard until he saw a friend, who drove him to the hospital. Officer Knoke collected appellant’s clothing, including a black cap and a black t-shirt stained with blood appellant had disposed of in a trash bin.
Immediately after appellant’s release from the hospital at about 2:00 a.m., Officer Knoke took him to the area where he claimed he had been shot. There were no bullet casings, blood drops, bullet strikes or any evidence of a shooting at 120th Street and Avalon. Additionally, there had been no reports of a shooting in the area. Officer Knoke was unable to locate appellant’s friend, who had allegedly brought him to the hospital, at her residence.
The officers took appellant to the police station and secured his clothing, shoes and a wrist watch. Appellant’s clothing included white sweat-socks, a white tank-top, a black shirt with blood and bullet holes in it, blue jean shorts with blood on them, and a black hat.
Two weeks later, the police obtained a cheek swab from appellant while he was in custody at the regional jail. An analysis of the DNA profile from the cheek swab compared to the DNA profile extracted from the blood found near the gas station was a match. The test revealed a statistical frequency of one in 42.32 quintillion in the African-American population, one in 53.62 quintillion in the Caucasian population, one in 2.328 sextillion in the Southwest Hispanic population, and one in 394.2 quintillion in the Southeast Hispanic population.
Peter Hecht, a detective from the Compton office of the Los Angeles County Sheriff’s Department testified as a gang expert. He opined the shooting at the Valero gas station was gang-motivated. According to Hecht, appellant was a self-admitted member of the Twilight Zone Crips street gang, and Garrison was a self-admitted member of the Swamp Crips. Hecht testified the gangs do not get along with each other and there is a history of violence between their members.
The Los Angeles County District Attorney filed an information charging appellant with the murder of Patrick Leonard (Pen. Code § 187, subd. (a); count 1) and the attempted willful, deliberate, premeditated murder of Keyon Thomas. (§§ 664/187, subd. (a); count 2.) The information further charged in the commission of both crimes appellant personally and intentionally discharged a firearm, a handgun, which proximately caused great bodily injury and death, (§ 12022.53, subd. (d)) personally and intentionally discharged a firearm, a handgun, (§ 12022.53, subd. (c)) and personally used a firearm, a handgun. (§ 12022.53, subd. (b).)
All further statutory references are to the Penal Code.
There was no evidence Garrison shot first, killing Leonard before Harrison fired his weapon; and Harrison’s counsel did not make that argument to the jury. However, even under this counterfactual scenario the absence of a proximate cause instruction would not be prejudicial. “Even if the jurors did not know exactly what proximate causation means, no juror who is conversant in the English language would find that discharging a firearm proximately caused injuries that had already occurred.” (Bland, supra, 28 Cal.4th at p. 338.)
Appellant did not present an affirmative defense.
The jury convicted appellant of all charges and found true all enhancement allegations. He appeals from the judgment of conviction.
DISCUSSION
I. THE COURT ERRED IN FAILING TO GIVE A PROXIMATE CAUSE INSTRUCTION ASA TO COUNT I
Appellant requested proximate cause instructions CALCRIM Nos. 240 and 620 based on the evidence of multiple shooters at the Valero gas station and evidence the fatal shot entered Leonard’s head from behind the left ear. The trial court denied his request for the instructions, but nevertheless permitted defense counsel to argue Garrison rather than appellant had fired the fatal shot in his closing argument to the jury. Appellant contends a proximate cause jury instruction should have been given at trial in a case such as this where there were multiple shooters. We agree.
CALCRIM No. 240 provides:
People v. Wheeler, supra, 22 Cal.3d 258, 276.
“It is settled that in criminal cases, even in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence.” (People v. St. Martin (1970) 1 Cal.3d 524, 531.)“The general principles of law governing the case are those principles closely and openly connected with the facts before the court, and which are necessary for the jury's understanding of the case.” (People v. Ervin (2000) 22 Cal.4th 48, 90;People v. St. Martin, supra, 1 Cal.3d at p. 531.) A trial court must instruct upon every theory of the case supported by substantial evidence. (People v. Montoya (1994) 7 Cal.4th 1027, 1047.) The trial court has a sua sponte duty to instruct on proximate cause when causation is at issue. (People v. Cervantes (2001) 26 Cal.4th 860, 866-874; People v. Bernhardt (1963) 222 Cal.App.2d 567, 590-591.) “A failure to instruct upon the element of proximate causation where that matter is in issue constitutes error. [Citation.]” (People v. Bernhardt, supra, 222 Cal.App.2d at p. 591.) The question whether defendant’s unlawful act was a proximate cause of the victim’s death is to be determined by the trier of fact according to the principles governing proximate causation. (People v. Schmies (1996) 44 Cal.App.4th 38, 50.) “A proximate cause requirement would seem to be necessary in only two scenarios: first . . . where there is more than one shooter; and second . . . where the bullet itself does not hit the victim, but the discharge of the firearm is nonetheless the proximate cause of the injury.” (People v. Palmer (2005) 133 Cal.App.4th 1141, 1153.)
The surveillance video at the gas station depicted Garrison leaving his door open upon returning to the car as if he was anticipating the shooter’s arrival. The shooter approached the car 15 to 20 seconds after Garrison had returned to the car. Garrison claimed he did not know where the gun he used to return fire had come from, which undermines his credibility in asserting he returned fired only after exiting the car. By Garrison leaving his door open, it is reasonable to infer he may have been anticipating exchanging fire with the approaching assailant and the need thereafter for an easy exit from the car.
The fatal shot entered the back of Leonard’s head, behind the left ear, and penetrated his skull with a back-to-front trajectory. Four of Leonard’s bullet wounds had a back-to-front trajectory. The deputy coroner was unable to situate Leonard’s body in relation to the shooter.
These facts certainly raise the possibility the driver, Garrison, may have shot Leonard in the course of firing at appellant.
Moreover, since it is impossible to see any detail of the inside of the car from the video, the jury was not compelled to find Garrison shot only after exiting the car. The “lack of detail” in the surveillance video, the fact that there were two shooters, and the coroner’s inability to establish the position of Leonard’s body in relation to the shooter, warranted a proximate cause instruction. A proximate cause instruction would have required the jurors to choose among multiple possible factual scenarios of the shooting. Because there were multiple shooters, such an instruction would have also provided a basis to support counsel’s closing argument.
A proximate cause instruction was necessary for the jury to understand the case because it deals with a factual scenario involving more than one shooter. (People v. Bland (2002) 28 Cal.4th 313, 337-338 [The defendant’s discharge of his firearm may have been a proximate cause of the victims’ injuries, even though it may have been his cohort’s bullets that hit the victims.].) Although Garrison claimed he did not know where the gun he used to return fire had come from, he also claimed he returned fire only after exiting the car. The jurors could reasonably question Garrison’s credibility and infer he may have fired his gun from inside the car and shot Leonard before exiting the car.
We review such instructional error under the harmless error standard to determine whether, beyond a reasonable doubt, the verdict would have been the same had the court properly instructed the jury. (People v. Flood (1998) 18 Cal.4th 470, 489; Chapman v. California (1967) 386 U.S. 18, 23-24.) In this case, based on the facts already discussed, we cannot conclude that the error was harmless in light of the possibility the jury could have concluded it was Garrison, not appellant, who fired the fatal shots.
II. THE TRIAL COURT PROPERLY DENIED APPELLANT’S MOTION TO SUPPRESS.
Prior to trial, appellant moved under Penal Code section 1538.5 to suppress evidence of the DNA sample obtained by the police.
Los Angeles Police Department Detective Dan Myers testified at the suppression hearing. He stated he and his partner went to the Valero gas station to investigate the shooting. He reviewed the gas station surveillance video. The gas station surveillance video showed the shooting and also showed one of the victims shooting back at the assailant. The assailant did not appear to be injured as he ran away at full speed. His partner, Los Angeles Police Department Detective Barling, called the officers at the hospital and relayed to them information concerning the clothing worn by the African-American male assailant depicted in the video. The assailant’s clothing included a dark T-shirt, knee-length blue jean shorts, white socks, and dark tennis shoes. The detectives requested the officers detain appellant for further investigation at the hospital because his clothing and physical characteristics matched the assailant’s depicted in the video.
Officer Knoke testified he and Officer Lazamo checked appellant’s clothing at the hospital, which included blue jean shorts, a white tank-top, a black shirt, and a black cap with a white and blue emblem on the front. Once appellant was released from the hospital, the officers detained him as a suspect based on Officer Lazamo’s conversation with the detectives in which he learned appellant’s clothing matched the assailant’s. Officer Knoke recovered appellant’s abandoned bloody black shirt.
While taking appellant to the police station, the officers drove by the area of 120th Street and Avalon Boulevard to verify appellant’s story it was the location where someone in a black SUV shot him as he walked down the street. The officers found no evidence of a shooting. Further, after checking with dispatch, the officers found no reports of a shooting at 120th Street and Avalon Boulevard.
Once appellant was brought to the police station, he was handcuffed to a bench.
The next morning, Detective Myers questioned appellant at 8:00 a.m. By this time, appellant was in a holding cell. About two weeks later, on August 15, Detective Myers obtained a DNA cheek sample from appellant.
At the conclusion of the testimony, defense counsel argued Officer Knoke did not have probable cause to take appellant into custody because there were no witnesses or other evidence linking him to the shooting, and nothing to indicate appellant was anything other than a shooting victim. Defense counsel thus urged the court to suppress all evidence obtained as a result of appellant’s illegal arrest, including his DNA evidence as “fruit of the poisonous tree.”
The prosecutor argued the police had probable cause to arrest appellant. Detectives relayed the assailant’s clothing description to the officers at the hospital and it matched the clothing worn by appellant. Moreover, upon further investigation the officers discovered no evidence of a shooting at 120th Street and Avalon Boulevard where appellant claimed he had been shot.
The trial court denied the motion to suppress, ruling the officers had both a reasonable suspicion to detain appellant for further investigation based on the description of the assailant’s clothing, and sufficient evidence developed thereafter to create probable cause to arrest appellant.
Appellant contends reversal is required because the trial court prejudicially erred by denying appellant’s motion to suppress evidence based on his unlawful detention and/or arrest.
A. Standard Of Review For A Motion To Suppress.
In ruling on a motion to suppress, the trial court must find the historical facts, select the applicable rule of law, and apply the law to the facts to determine whether the law as applied has or has not been violated. (People v. Ayala (2000) 24 Cal.4th 243, 279.) The substantial-evidence standard applies to appellate review of the questions of fact inquiry. (Ibid.) Independent review governs the determination whether the law has been violated. (Ibid.)
B. The Police Had Reasonable Suspicion To Detain And Later Probable Cause To Arrest Appellant.
“[P]robable cause is a fluid concept-turning on the assessment of probabilities in particular factual contexts-not readily, or even usefully, reduced to a neat set of legal rules.” (Illinois v. Gates (1982) 462 U.S. 213, 232.) It “is incapable of precise definition or quantification into percentages because it deals with probabilities and depends on the totality of the circumstances.” (Maryland v. Pringle (2003) 540 U.S. 366, 371.) “The substance of all the definitions of probable cause is a reasonable ground for belief of guilt[.]” (People v. Thompson (2006) 38 Cal.4th 811, 818.) “But sufficient probability, not certainty, is the touchstone of reasonableness under the Fourth Amendment[.]” (Hill v. California, (1971) 401 U.S. 797, 804.) “Subjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis.” (Whren v. U.S. (1996) 517 U.S. 806, 813.) Probable cause is measured by an objective standard based on the information known to the arresting officer, rather than a subjective standard taking into account the arresting officer’s motivations or beliefs. (Johnson v. Lewis (2004) 120 Cal.App.4th 443, 454.)
“‘[T]he term “probable cause,” according to its usual acceptation, means less than evidence which would justify condemnation. . . . It imports a seizure made under circumstances which warrant suspicion.’” (Illinois v. Gates, supra, 462 U.S. at p. 235, quoting Locke v. U.S. (1813) 7 Cranch 339, 348.) “While an effort to fix some general, numerically precise degree of certainty corresponding to ‘probable cause’ may not be helpful, it is clear that ‘only the probability, and not a prima facie showing, of criminal activity is the standard of probable cause.’ [Citation.]” (Illinois v. Gates, supra, 462 U.S. at p. 235.)
The California Supreme Court has explained probable cause to arrest “exists when the facts known to the arresting officer would lead a person of ordinary care and prudence to entertain an honest and strong suspicion that the person arrested is guilty of a crime.” (People v. Harris (1975) 15 Cal.3d 384, 389.) “When the detention exceeds the boundaries of a permissible investigative stop, the detention becomes a de facto arrest requiring probable cause.” (In re Carlos M. (1990) 220 Cal.App.3d 372, 384.)
“Determining whether an officer had cause to arrest requires two analytically distinct steps, each with its own standard of review. First, the court ascertains when the arrest occurred and what the arresting officer then knew; second, the court decides whether the officer’s knowledge at the time of arrest constituted adequate cause. On appeal, a reviewing court must accept the trial court’s express or implied findings on disputed factual issues in the first step of the inquiry if they are supported by substantial evidence, but a reviewing court must use its independent judgment to review the second step of the inquiry.” (People v. Duncan (1986) 42 Cal.3d 91, 97; People v. Price (1991) 1 Cal.4th 324, 409, superseded by statute on other grounds as stated in People v. Hinks (1997) 58 Cal.4th 1157, 1161-1165.)
The detectives requested the officers to detain appellant for further investigation at the hospital because his clothing, race and size matched the assailant’s in the surveillance video. From the video the officers knew one of the victims had returned fire. This created the possibility the assailant also had been shot. Given the temporal proximity to the reported shooting and the physical proximity of Gardena Memorial Hospital to the Valero gas station shooting scene, the officers justifiably held a reasonable belief appellant who sought treatment for bullet wounds at the hospital may well have been involved in the shooting. These facts in combination created reasonable suspicion to detain appellant for further investigation. (People v. Aldridge (1984) 35 Cal.3d 473, 478, quoting In re Tony C. (1978) 21 Cal.3d 888, 893 [“In order to justify a detention ‘the circumstances known or apparent to the officer must include specific and articulable facts causing him to suspect that (1) some activity relating to crime has taken place or is occurring or about to occur, and (2) the person he intends to stop or detain is involved in that activity. Not only must he subjectively entertain such a suspicion, but it must be objectively reasonable for him to do so: the facts must be such as would cause any reasonable police officer in a like position, drawing when appropriate on his training and experience [citation], to suspect the same criminal activity and same involvement by the person in question.’”].)
In addition to the matching description relayed by the detectives to the officers at the hospital, appellant’s false exculpatory statement supported the officer’s honest and strong suspicion appellant was guilty of a crime. A “prior statement, although exculpating in form, may prove highly incriminating at the trial because, upon a showing of its falsity, it can constitute evidence of consciousness of guilt. [Citation.]” (People v. Benavides (2005) 35 Cal.4th 69, 100.) Upon further investigation by the officers, there was no evidence of a shooting at 120th Street and Avalon Boulevard to corroborate appellant’s claim of where he had been shot. The falsity of appellant’s explanation of the shooting heightened the officers’ suspicions as to appellant’s involvement in the shooting at the gas station. Moreover, after checking with dispatch, the officers did not find any reports of a shooting in the vicinity of 120th Street and Avalon Boulevard. The falsity of appellant’s exculpatory statement constituted strong evidence of his consciousness of guilt. (Ibid.) This evidence of the officers’ combined knowledge constituted probable cause to “entertain an honest and strong suspicion” appellant had been engaged in criminal activity, warranting his arrest. (People v. Harris, supra, 15 Cal.3d at p. 389.)
Accordingly, we find the trial court properly denied the motion to suppress. Based on these facts, the officers had both a reasonable suspicion to detain appellant which developed into probable cause to turn the detention into a valid arrest.
III. SUBSTANTIAL EVIDENCE SUPPORTS THE TRIAL COURT’S DECISION TO ACCEPT THE PROSECUTOR’S JUSTIFICATIONS FOR HIS PEREMPTORY STRIKES.
When the prosecutor struck the seventh African-American prospective juror, defense counsel made a Batson-Wheeler motion. Defense counsel argued the prosecutor was systematically excluding African-American jurors on the basis of group bias. The trial court found a prima facie case had been made and noted the prosecutor had exercised seven of the 11 peremptory challenges he had exercised up to that point to exclude African-Americans. The court then asked the prosecutor to state his reasons for excluding the challenged jurors.
Overall, the prosecutor only exercised 12 peremptory strikes.
People v. Young (2005) 34 Cal.4th 1149, 1173.
Appellant contends the prosecutor violated his right to equal protection and a jury drawn from a representative cross-section of the community by excusing African-American jurors on the basis of group bias and defending one strike on impermissible gender grounds. When a race- or gender-neutral explanation for use of a peremptory challenge has been offered, the opponent of the strike -- here, defendant Jeremy Jamal Harrison -- has the burden of proving purposeful discrimination. (Johnson v. California (2005) 545 U.S. 162, 168; People v. Avila (2006) 38 Cal.4th 491, 541.) The trial court appropriately presumes the prosecutor uses peremptory challenges in a constitutional manner (People v. Avila at p. 541), “and we give deference to the court’s ability to distinguish ‘bona fide reasons from sham excuses.’ [Citation.]” (Ibid.) As 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.” (People v. Burgener (2003) 29 Cal.4th 833, 864; accord, People v. Avila at p. 541.)
A. The Legal Principles Governing Wheeler Motions.
The use of peremptory challenges to remove prospective jurors on the basis of group bias violates a criminal defendant’s right to trial by a jury drawn from a representative cross-section of the community. (Cal. Const., art. I, § 16.) Bias against “members of an identifiable group distinguished on racial, religious, ethnic, or similar grounds” also violates the defendant’s right to equal protection under the Fourteenth Amendment. (Batson v. Kentucky, supra, 500 U.S. at p. 88.) African-Americans constitute a cognizable group for the purposes of Wheeler. (People v. Young (2005) 34 Cal.4th 1149, 1172.) Gender is also an unconstitutional proxy for juror impartiality. (J.E.B. v. Alabama (1994) 511 U.S. 127, 131 [holding a prosecutor’s use of peremptory challenges to strike nine out of 10 males in a paternity case where resulting jury was all female violated defendant’s right to equal protection].)
In Johnson v. California ((2005) 545 U.S. 162 [holding that permissible inferences of discrimination are sufficient to establish a prima facie case under Batson]), the United States Supreme Court reiterated the three-part test trial courts should employ 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.’ [Citations.]” (Id. at p. 168.) Because the trial court found a prima facie case, we review only the third prong of the trial court’s analysis. (People v. Ward (2005) 36 Cal.4th 186, 201, fn. 2 [“Because we assume that defendant made a prima facie showing, Johnson does not affect our holding here.”].)
In evaluating the prosecutor’s justifications, the trial court “must make a sincere and reasoned attempt to evaluate the prosecutor’s explanation in light of the circumstances of the case as then known, his knowledge of trial techniques, and his observations of the manner in which the prosecutor has examined members of the venire. . . .” (People v. Reynoso (2003) 31 Cal.4th 903, 919, 926 [affirming trial court’s determination of no Wheeler error where prosecutor used two out of four peremptory challenges to excuse Hispanic jurors, even though no Hispanic jurors appeared on the final panel, because prosecutor’s reasons were neither inherently implausible nor affirmatively contradicted by the record].) The court must also ensure the prosecutor’s reasons “are neither contradicted by the record nor inherently implausible.” (People v. Reynoso, supra, 31 Cal.4th at p. 929.) The court must further ensure “nothing in the record is in conflict with the usual presumptions to be drawn, i.e., that all peremptory challenges have been exercised in a constitutional manner. . . .” (Ibid.) The trial court must “determine not only that a valid reason existed but also that the reasons actually prompted the prosecutor’s exercise of the particular peremptory challenge.” (Id. at p. 919.)
We review the trial court’s ruling for substantial evidence. (People v. McDermott (2002) 28 Cal.4th 946, 971 [finding substantial evidence supported trial court’s denial of a Wheeler motion where prosecutor dismissed eight out of 20 African-American jurors on the basis of their death penalty views even though final jury contained no African-Americans].) The trial court’s findings are entitled to great deference because they largely turn on an evaluation of credibility. (Batson v. Kentucky, supra, 476 U.S. at p. 98.) Generally, the trial court is in the best position to “distinguish bona fide reasons” from “sham excuses belatedly contrived to avoid admitting acts of group discrimination.” (People v. Wheeler, supra, 22 Cal.3d at p. 282.) Rather than focusing on the objective reasonableness of the asserted nonracial motive, the reviewing court examines the subjective genuineness of the asserted nonracial motive. (Purkett v. Elem (1995) 514 U.S. 765, 769 [concluding long and unkempt hair is a race-neutral reason for exercising a peremptory challenge]; People v. Reynoso, supra, 31 Cal.4th at p. 924.)
B. The Prosecutor Stated Facially Neutral Reasons For The Dismissal Of Each Juror
In all, the court asked the prosecutor to state reasons for dismissal of each of seven African-American jurors. We will refer to the seven African-American jurors by letter, A through G.
1. Juror A (#3953)
Juror A had been a judicial assistant for three years and a court employee for 21 years. She had previously served as a juror on two criminal trials and worked with district attorneys and defense lawyers every day.
The prosecutor said he excused Juror A because he had had an experience where a clerk was a foreperson on a “hung” jury because the clerk believed he could handle the case better than the prosecutor. As a result, the prosecutor explained, he no longer selected clerks as jurors.
2. Juror B (#9570)
Juror B had served as a juror on a civil case, but did not hear any evidence because it settled. She was friends with a district attorney and two public defenders who worked in the courthouse. She also had several friends who were police officers. Juror B had one nephew who was in jail and another nephew who was murdered last year. No one had been arrested for her nephew’s murder. The same police department investigating the murder in this case had conducted her nephew’s murder investigation. When asked by the prosecutor if the way the police investigated her nephew’s murder would affect this case, Juror B answered, “No.”
Before giving the prosecutor a chance to justify Juror B’s dismissal, the trial court said, “frankly, I see reasons why she would be the subject of a peremptory for both sides, a lot of relatives who were police officers, a lot of relatives who had been defendants, and a relative who had been killed.” The prosecutor added the murder was “within a year or something.”
3. Juror C (#4184)
As a pastor, Juror C felt it would be difficult to judge the case based on the evidence because he believed it was not his job or role in life. When asked by the court if he would be able to return a verdict of guilty if the people proved their case, Juror C answered, “I don’t know. I really don’t.”
The prosecutor stated he excused Juror C because he indicated he could not be fair and did not want to judge.
4. Juror D (#9511)
Juror D, an eligibility worker for the department of social services, had no prior jury experience.
In explaining Juror D’s dismissal, the prosecutor simply stated, “I don’t accept social workers on my juries.”
5. Juror E (#1027)
Juror E was a home security officer and foster care parent. Her daughter, niece, and brother all had some criminal history. When asked if her knowledge of their court proceedings would affect her, she replied, “They won’t.”
The prosecutor stated he excused Juror E because she indicated she had a daughter and other family members incarcerated or facing criminal charges.
6. Juror F (#7154)
Juror F had two previous jury experiences on criminal trials. One jury reached a verdict and the other hung. When the prosecutor asked why the jury was unable to reach a verdict, Juror F said one of the jurors had failed to deliberate. Juror F also had a brother-in-law who was convicted as an accomplice to a murder. Juror F said her family members did not feel he received a fair trial. When the court asked if her family experience would affect her as a juror, she stated she was not sure. When asked if she felt she could judge the trial fairly on the evidence, she answered, “I think so.”
After asking the court for information on Juror F to refresh his recollection, the prosecutor explained he excused her because she had been on a hung jury.
7. Juror G (#9609)
The court found the reasons given for excluding the other six jurors were “very race neutral.” However, Juror 9609 in the court’s view was “a much closer question given the response offered by the prosecution.” On appeal, Harrison focuses on Juror 9609.
Juror 9609 was a telephone operator and had previous jury experience in a criminal trial which reached a verdict. The first time the court asked about Juror 9609’s dismissal, the prosecutor asked the court to move on to the next juror so he could find his notes. After discussing the remaining jurors, as noted above, the court again asked the prosecutor for his reasons for striking Juror 9609. At the prosecutor’s request, the court repeated Juror 9609’s responses. When the court said Juror 9609 had previously been on a jury, the prosecutor asked if it had reached a verdict, which it had. There was a pause in the proceedings while the prosecutor searched for his notes, and then the following exchange took place.
“[Prosecutor]: Your Honor, I believe I did not take down her information. When I excused her, it was based on getting a balance of the jury in terms of getting the balance of men and women. Previously, it was tilted to have more females. I would prefer a more balanced jury. I selected her simply because I had no information about her.
“[The Court]: Okay. [Defense counsel]?
“[Defense Counsel]: Well, it just seems that there were plenty of other jurors to select for that situation; and, you know, counsel elected an African-American juror. I will submit.
“[The Court]: Well, seriously, I recognize it isn’t the greatest reason in the world, and, in fact, there could be some question as to whether or not any juror should be excused because of their gender.
“[Prosecutor]: Well, I believe that while excluding someone simply because of their gender would be inappropriate, I think I have a right to pick a jury that I believe will work together and have a balance in terms of representing what I believe is an appropriate jury.
“In this case, I think -- based upon the racial and gender makeup of this jury, I think it is a very balanced jury. I will note there are -- one, two, three, four -- at least five, by my calculation, African-Americans on this jury.
“[The Court]: I believe there are four left, but there are -- of the twelve that are currently in the box, four, possibly five. There are definitely four jurors.
“I think, on balance, the reasons given for the other jurors were very race-neutral.
“The last juror, [Juror 9609], is a much closer question. Given the response offered by the prosecution, I don’t believe it is for an improper racial and/or gender reason solely. I am satisfied that there were other reasons which were expressed. The balance of type of juror [sic], I think that is something that is a reasonable means that is not created by the prosecution, so I will deny the Wheeler.”
It is unclear what the trial court meant by “balance of type of juror.” If the court was referring to “balance” in terms of gender, it would be squarely impermissible.
J.E.B. v. Alabama ex rel. T.B. (1994) 511 U.S. 127, 140 [holding a prosecutor’s use of peremptory challenges to strike nine out of ten males in a paternity case where resulting jury was all female violated defendant’s right to equal protection].
The trial court and the prosecutor wanted to revisit the Wheeler motion the next morning. The trial court, after reviewing the record from a “long court day,” wanted to “make certain [the prosecutor] had a full opportunity to state his reasons on the record.” The court had his clerk call the prosecutor at approximately 9:00 a.m. to say the court intended to revisit the Wheeler issue.
After court adjourned the previous day, the prosecutor, bothered by his inability to recall the reasons for Juror 9609’s dismissal, returned to his office to review his notes. He recalled Juror 9609 snickering during defense counsel’s questioning of another prospective juror. The prosecutor explained, “From that point I excluded her, in my mind, as a juror.”
However, before coming to court, the prosecutor consulted his supervisor regarding whether to bring the snickering explanation to the court’s attention. To prove he had developed this explanation prior to receiving the clerk’s call, the prosecutor brought his supervisor along as a witness in case the court had “any doubt about [his] veracity in making that statement.”
Defense counsel renewed her Wheeler motion, indicating when the events were fresh, the prosecutor had stated a desire for a gender “balanced panel”—a rationale completely different from the snickering explanation.
In reviewing the renewed motion, the trial court reiterated the need for a race- and gender-neutral reason to meet the guidelines of Wheeler. The court also remembered the juror who was being questioned and specifically recalled some snickering in the venire. While the trial court could not identify Juror 9609 as the one who was doing the snickering, the court did notice “there were two African-American females who were, indeed, snickering.” The trial court stated, “I don’t, at this point, feel that there is any reason to doubt [the prosecutor’s] sincerity because I did, indeed, hear the same ruckus. . . . There was enough that I did see in open court to accept his reason.” The trial court again denied the Wheeler motion.
C. The Trial Court Did Not Commit Reversible Error In Finding No Wheeler Violation
There can be no question the prosecutor’s observation of Juror 9609 snickering during the voir dire of another prospective juror while that juror was being questioned about her police-officer relatives, if it had been given in response to the court’s initial inquiry, would be an appropriate race- and gender-neutral reason for exercising a peremptory challenge. (People v. Reynoso, supra, 31 Cal.4th at p. 917 [peremptory challenges based on counsel’s personal observations are not improper]; People v. Perez (1994) 29 Cal.App.4th 1313, 1330 [observation of prospective juror “laughing at an inappropriate point during voir dire” is “race neutral”]; see generally Wheeler, supra, 22 Cal.3d at p. 275 [“either party may feel a mistrust of a juror’s objectivity on no more than the ‘sudden impressions and unaccountable prejudices we are apt to conceive upon the bare looks and gestures of another’ (4 Blackstone, Commentaries 353) -- upon entering the box the juror may have smiled at the defendant, for instance, or glared at him”].) Appellant urges us to dismiss this explanation as lacking any credibility because it was not immediately presented to the court, notwithstanding the trial court’s confirmation it had observed the inappropriate conduct being described and, based on that observation, expressly found the prosecutor was sincere in proffering this reason for the peremptory challenge. To so do, however, would substantially overstep our appropriate role in reviewing the trial court’s ruling. (Avila, supra, 38 Cal.4th at p. 541 [we review trial court’s ruling on question of purposeful discrimination for substantial evidence; ruling should be affirmed if trial court makes “sincere and reasoned effort to evaluate the nondiscriminatory justifications offered”].)
It is correct that snickering was not the initial reason given by the prosecutor for excusing Juror 9609; creating gender balance on the jury panel was. That rationale, standing alone, would be prohibited gender-based discrimination. (People v. Bonilla (2007) 41 Cal.4th 313, 342 [“[b]oth the state and federal Constitutions prohibit the use of peremptory challenges to exclude prospective jurors based on race or gender”].) However, in light of the prosecutor’s explanation that he had written the word “out” on his notes, but could recall nothing further about the reasons he had decided to exclude Juror 9609, we cannot conclude that this statement so fundamentally tainted the prosecutor’s subsequent race- and gender-neutral explanation for striking Juror 9609 that the trial court was required to disbelieve the prosecutor and grant the Wheeler motion.
In Wheeler the Supreme Court explained that prohibiting the exercise of peremptory challenged based on group bias -- a presumption that certain jurors will be biased in favor of one party in a particular case merely because they are members of an identifiable racial, religious or ethnic group -- “not only upsets the demographic balance of the venire but frustrates the primary purpose of the representative cross-section requirement. That purpose . . . is to achieve an overall impartiality by allowing the interaction of the diverse beliefs and values the jurors bring from their group experiences.” (Wheeler, supra, 22 Cal.3d at p. 276.) It is in no small measure ironic that the exercise of peremptory challenges in an effort to maintain a representative cross-section on the jury panel itself constitutes a violation of Wheeler’s requirements. Nonetheless, there is no doubt the prosecutor’s initial explanation for excusing Juror 9609 was gender-based and thus constitutionally impermissible. (People v. Bonilla, supra, 41 Cal.4th at p. 342.)
People v. Wheeler, supra, 22 Cal.3d 258, 282.
In People v. Schmeck (2005) 37 Cal.4th 240, 276 (Schmeck) the Supreme Court noted it had not decided in Wheeler or in any subsequent case “whether a mixed-motive peremptory challenge could constitute a violation of the defendant’s constitutional rights.” The Schmeck Court concluded it need not “address the mixed-motive question in this case [because] we have rejected defendant’s claim that the prosecutor’s stated reasons for the peremptory challenges were pretextual. . . .” (Ibid.)
The open issue regarding mixed-motive peremptory challenges as articulated by Schmeck is whether the trial court may properly deny a Wheeler objection “on the ground that the improver motivation was not the ‘sole’ or ‘only’ motivation for the challenge.” (Schmeck, supra, 37 Cal.4th at p. 276; see id. at p. 275 [quoting Wheeler, supra, 22 Cal.3d at pp. 276-277, in which the Supreme Court stated “the use of peremptory challenges to remove prospective jurors on the sole ground of group bias violates the right to trial by a jury drawn from a representative cross-section of the community under article I, section 16, of the California Constitution”]; see also Wheeler, at p. 281 [“If the court finds that a prima facie case has been made, the burden shifts to the other party to show if he can that the peremptory challenges in question were not predicated on group bias alone” (italics added; fn. omitted)]; id. at p. 287 [“all claims in California courts that peremptory challenges are being used to strike jurors solely on the ground of group bias are to be governed by article I, section 16, of the California Constitution and the procedure outlined above” (italics added); see also Batson v. Kentucky, supra, 476 U.S. at p. 89 [“the Equal Protection Clause forbids the prosecutor to challenge potential jurors solely on account of their race or on the assumption that black jurors as a group will be unable impartially to consider the State’s case against a black defendant” (italics added)].)
Subsequent to its decision in Schmeck, the Supreme Court asked the parties in In re Freeman (S122590, Feb. 14, 2006 order) (2006 Cal. Lexis 3718) to file supplemental briefs addressing several questions including, “Has a violation of People v. Wheeler, supra, or Batson v. Kentucky [, supra, 476 U.S. 79] been stated if the party’s exercise of a peremptory challenge was based on permissible and impermissible reasons? In other words, does a peremptory challenge based on mixed motives violate Wheeler or Batson? (See People v. Schmeck (2005) 37 Cal.4th 240, 275-276.)” In re Freeman, like Schmeck, was decided without reaching that issue. (See In re Freeman (2006) 38 Cal.4th 630.)
Johnson v. California (2005) 545 U.S. 162 [holding that permissible inferences of discrimination are sufficient to establish a prima facie case under Batson].
As discussed, the trial court echoed this language in denying Harrison’s Wheeler motion, concluding at one point the prosecutor was not exercising his peremptory challenges “for an improper racial and/or gender reason solely. I am satisfied that there were other reasons which were expressed.” “In light of the language in Wheeler, it is not surprising that the trial court repeated this wording in ruling on defendant’s Wheeler motion.” (Schmeck, supra, 37 Cal.4th at p. 276.)
Johnson v. California, supra, 545 U.S. 162, 168, footnote omitted.
In Howard v. Senkowski (2d Cir. 1993) 986 F.2d 24 the Second Circuit answered the question left unresolved in California, holding the United States Supreme Court’s use of the adverb “solely” in Batson v. Kentucky, supra, 476 U.S. at page 89, was not intended to alter the Court’s prior equal protection analysis involving dual or mixed motivation, such that an impermissible racial motive need be the only basis for a peremptory challenge in order to disallow the challenge. (Id. at p. 28.) “[W]e conclude that Batson challenges may be brought by defendants who can show that racial discrimination was a substantial part of the motivation for a prosecutor’s peremptory challenges, leaving to the prosecutor the affirmative defense of showing that the same challenges would have been exercised for race-neutral reasons in the absence of such partially improper motivation.” (Id. at p. 30; accord, Gattis v. Snyder (3d Cir. 2002) 278 F.3d 222, 235 [mixed motive analysis appropriate in evaluating objections to peremptory challenges under Batson v. Kentucky, supra, 476 U.S. 79]; Wallace v. Morrison (11th Cir. 1996) 87 F.3d 1271, 1274-1275 [dual motivation analysis applies to Batson claims].)
The Second Circuit explained, “In the realm of constitutional law, whenever challenged action would be unlawful if improperly motivated, the Supreme Court has made it clear that the challenged action is invalid if motivated in part by an impermissible reason but that the alleged offender is entitled to the defense that it would have taken the same action in the absence of the improper motive.” (Howard v. Senkowski, supra, 986 F.2d at p. 26, citing Mt. Healthy City School Board of Education v. Doyle (1977) 429 U.S. 274, 284-287, and Village of Arlington Heights v. Metropolitan Housing Development Corp. (1977) 429 U.S. 252.)
People v. Ward (2005) 36 Cal.4th 186, 201, footnote 2 [“Because we assume that defendant made a prima facie showing, Johnson does not affect our holding here.”].
Utilizing this mixed motivation approach, consistent not only with United States Supreme Court precedent but also California case law in other contexts (see, e.g., Heard v. Lockheed Missiles & Space Co. (1996) 44 Cal.App.4th 1735, 1748; Harman v. City and County of San Francisco (2006) 136 Cal.App.4th 1279, 1289), substantial evidence supports the trial court’s conclusion the peremptory challenge to Juror 9609 was not primarily motivated by impermissible gender discrimination. Nor is there any basis in the record before this court to challenge the trial court’s conclusion that there was no impermissible racial discrimination as to the other peremptory challenges; substantial evidence supported the trial court’s acceptance of the prosecutor’s facially neutral explanation as to each of those jurors.
DISPOSITION
The judgment as to count I is reversed and the matter is remanded to the trial court for further proceedings consistent with this opinion.
PERLUSS, P. J., Concurring and Dissenting.
I fully concur with Justice Zelon’s conclusions the trial court properly denied both Jeremy Harrison’s motion to suppress evidence obtained following his arrest and his motion under People v. Wheeler (1978) 22 Cal.3d 258 questioning the prosecutor’s use of peremptory challenges. I also agree the court erred in failing sua sponte to instruct the jury as to the definition of “proximate cause.” (See People v. Bland (2002) 28 Cal.4th 313, 335 (Bland) [prior Supreme Court decisions “make clear that proximate causation does have a meaning peculiar to the law, and that a jury would have difficulty understanding its meaning without guidance”]; People v. Palmer (2005) 133 Cal.App.4th 1141, 1153 [“proximate cause requirement would seem to be necessary in only two scenarios: first . . . where there is more than one shooter; and second . . . where the bullet itself does not hit the victim, but the discharge of the firearm is nonetheless the proximate cause of the injury”].) However, I respectfully disagree that this error was prejudicial and would affirm Harrison’s conviction for the murder of Patrick Leonard, as well as for the attempted willful, deliberate and premeditated murder of Kenyon Thomas.
The jury not only convicted Harrison of the first degree murder of Leonard (Pen. Code, §§ 187, subd. (a), 189) but also found true the special allegation Harrison had in the commission of the offense “personally and intentionally discharged a firearm, a handgun, which proximately caused death to Patrick Leonard, within the meaning of Penal Code section 12022.53(d).” In connection with the charge of murder the jury was instructed the People had to prove, among other elements, Harrison “committed an act that caused the death of another person.” (Judicial Council of California Criminal Jury Instructions (2006) CALCRIM No. 520.) With respect to the firearm-use enhancement the jury was instructed, “If you find the defendant guilty of the crimes charged, you must then decide whether, for each crime, the People have proved the additional allegations that the defendant personally and intentionally discharged a firearm during those crimes and, if so, whether the defendant’s act caused great bodily injury/or death. . . . [¶] . . . [¶] If the People have proved [Harrison personally discharged a firearm during the commission of the crime and intended to discharge the firearm], you must then decide whether the People also have proved that the defendant’s act caused great bodily injury to or the death of a person. . . .” (CALCRIM No. 3150.) Thus, although no definition of proximate cause was provided the jury, it was plainly instructed it had to find Harrison “caused” Leonard’s death to convict him of murder and to find true the special firearm-use enhancement allegation.1
Harrison’s claim of prejudice, accepted somewhat uncritically by Justices Zelon and Johnson, is there was some (minimal, at best) forensic evidence to support the defense theory that the shot that killed Leonard was fired by Leonard’s companion Dayon Garrison from inside the car in which Garrison and Leonard had been riding -- a point Harrison’s counsel emphasized in closing argument -- and that somehow a proximate cause instruction would have allowed the jury to find Harrison not guilty if it accepted that version of events. Yet for good reason, in a remarkably similar murder case also involving two shooters, the Supreme Court held, although it was error not to define proximate causation, any error was harmless because “[a] correct instruction on proximate causation could not have aided defendant.” (Bland, supra, 28 Cal.4th at p. 318.) The Court explained that, without a proper definition of proximate cause, jurors may “‘improperly limit their discussion of what constitutes a cause in fact.’ [Citation.] However, jurors who improperly limit their discussion of what constitutes proximate cause will not find causation where it does not exist. The correct definition of proximate causation is broader, not narrower, than jurors might assume.” (Id. at p. 338.)
So, too, in this case. If properly instructed on proximate cause, the jury would have advised, “An act causes death if the death is the direct, natural, and probable consequence of the act and the death would not have happened without the act. A natural and probable consequence is one that a reasonable person would know is likely to happen if nothing unusual intervenes. In deciding whether a consequence is natural and probable, consider all the circumstances established by the evidence. [¶] There may be more than one cause of death. An act causes death only if it is a substantial factor in causing the death. A substantial factor is more than a trivial or remote factor. However, it does not need to be the only factor that causes the death.” (CALCRIM No. 520 [2d & 3d bracketed pars.]; see also CALCRIM Nos. 240 [causation], 620 [causation: special issues], 3150 [personally used firearm: intentional discharge and discharge causing injury or death].)
If, as would seem most likely on this record, the jury believed Harrison fatally shot Leonard, then the absence of the proximate cause instruction could not have prejudiced Harrison. But even if the evidence raised a reasonable doubt whether Garrison shot Leonard from inside Garrison’s car, so long as the jury also concluded Harrison had fired first -- as both Garrison and Thomas, the third man in the car, testified and as reflected on the videotape2 -- then Harrison’s attack was the proximate cause of Leonard’s death because his shooting set in motion a chain of events that, as a direct, natural and probable consequence led to Leonard’s death. (See Bland, supra, 28 Cal.4th at p. 337 [“[a] person can proximately cause a gunshot injury without personally firing the weapon that discharged the harm-inflicting bullet”]; People v. Palmer, supra, 133 Cal.App.4th at p. 1150 [“a defendant can proximately cause injury by discharging a firearm within the meaning of section 12022.53, subdivision (d) even if his or her bullet does not actually strike the victim”].) If it had any potential impact on the jury’s deliberations, in other words, the absence of a proximate cause instruction would only have benefited Harrison, not prejudiced him, because the jury might have improperly limited its discussion of causation and mistakenly accepted the defense position that a not guilty verdict would be justified if it had concluded Garrison shot Leonard. (See Bland, at p. 338.)
Accordingly, I would affirm the judgment.
JOHNSON, J., Concurring and Dissenting.
I concur in the portion of Justice Zelon’s opinion finding it prejudicial error to fail to provide the jury with an instruction on proximate cause in this case involving two different shooters. For that reason alone, I support her view the murder conviction must be reversed. I further agree with both of my colleagues the police had reasonable suspicion to detain and later probable cause to arrest appellant. Accordingly, I join them in concluding the trial court correctly denied appellant’s motion to suppress.
I cannot, however, accept my colleagues’ conclusion the trial court properly accepted the prosecutor’s dual-motive justifications for striking an African-American female from the venire. In my view, the prosecutor’s reliance on a clearly unconstitutionally discriminatory reason for excluding Juror 9609 so tainted the prosecutor’s after-the-fact race and gender neutral justification it vitiated the validity of the entire procedure. As a result, the trial court was constitutionally compelled to grant appellant’s Wheeler/Batson 1 motion and dismiss the entire venire.
Accordingly, for reasons explored more thoroughly below, I would reverse the entire judgment—that based on the attempted murder conviction as well as that based on the murder conviction on grounds of Batson/Wheeler error.
I. LEGAL PRINCIPLES GOVERNING BATSON/WHEELER MOTIONS.
The use of peremptory challenges to remove prospective jurors on the basis of group bias violates a criminal defendant’s right to trial by a jury drawn from a representative cross-section of the community.2 Bias against “members of an identifiable group distinguished on racial, religious, ethnic, or similar grounds” also violates the defendant’s right to equal protection under the Fourteenth Amendment.3 African-Americans constitute a cognizable group for the purposes of Wheeler.4 Gender is also an unconstitutional proxy for juror impartiality.5 A single unconstitutional justification rebuts the prosecutor’s presumption of constitutional validity and, in such cases, the trial court must dismiss the venire and begin jury selection anew.6
In Johnson v. California,7 the United States Supreme Court reiterated the three-part test trial courts should employ 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.]”8 Because the trial court found a prima facie case, this case turns on the third prong of the trial court’s analysis.9
In evaluating the prosecutor’s justifications, the trial court “‘must make “a sincere and reasoned attempt to evaluate the prosecutor’s explanation in light of the circumstances of the case as then known, his knowledge of trial techniques, and his observations of the manner in which the prosecutor has examined members of the venire . . . .”’ [Citation.]” The court must also ensure the prosecutor’s reasons “are neither contradicted by the record nor inherently implausible.” The court must further ensure “nothing in the record is in conflict with the usual presumptions to be drawn, i.e., that all peremptory challenges have been exercised in a constitutional manner . . . .” The trial court must “determine not only that a valid reason existed but also that the reason actually prompted the prosecutor’s exercise of the particular peremptory challenge.”
People v. Reynoso (2003) 31 Cal.4th 903, 919, 929 [affirming trial court’s determination of no Wheeler error where prosecutor used two out of four peremptory challenges to excuse Hispanic jurors, even though no Hispanic jurors appeared on the final panel, because prosecutor’s reasons were neither inherently implausible nor affirmatively contradicted by the record].
People v. Reynoso, supra, 31 Cal.4th 903, 929.
People v. Reynoso, supra, 31 Cal.4th 903, 929.
People v. Fuentes (1991) 54 Cal.3d 707, 720 [reversing trial court’s finding of no Wheeler error because trial court failed to carefully and individually evaluate reasons given by prosecutor for dismissal of 14 out of 19 African-American jurors].
The trial court’s ruling is reviewed for substantial evidence. The trial court’s findings are generally entitled to deference because they largely turn on an evaluation of credibility. This is because the trial court is usually in the best position to “distinguish bona fide reasons” from “sham excuses belatedly contrived to avoid admitting acts of group discrimination.” Rather than focusing on the objective reasonableness of the asserted neutral motive, the reviewing court examines the subjective genuineness of the asserted neutral motive. Despite the customary deference given to trial courts, “‘[d]eference does not by definition preclude relief.’ [Citation.]”
People v. McDermott (2002) 28 Cal.4th 946, 971 [finding substantial evidence supported trial court’s denial of a Wheeler motion where prosecutor dismissed 8 out of 20 African-American jurors on the basis of their death penalty views even though final jury contained no African-Americans].
Batson v. Kentucky, supra, 476 U.S. 79, 98, footnote 21.
People v. Wheeler, supra, 22 Cal.3d 258, 282.
Purkett v. Elem (1995) 514 U.S. 765, 769 [concluding long and unkempt hair is a race-neutral reason for exercising a peremptory challenge]; see also, People v. Reynoso, supra, 31 Cal.4th 903, 924.
Miller-El v. Dretke (2005) 545 U.S. 231, 240 [finding strikes against 91 percent of the African-American prospective jurors were improperly based on race].
II. THE TRIAL COURT ERRED IN ACCEPTING THE BELATED EXPLANATION JUROR 9609 WAS EXCUSED FOR A REASON OTHER THAN GENDER.
A prosecutor may not defend against allegations of a race-based strike by asserting an equally impermissible “gender balance” rationale. In Rice v. Collins, one of the prosecutor’s aims in striking a prospective juror was “achieving gender balance on the jury.” The United States Supreme Court unequivocally rejected this reason and reaffirmed its holding in J.E.B. v. Alabama ex rel. T.B., stating “discrimination in jury selection on the basis of gender violates the Equal Protection Clause.” “Striking individual jurors on the assumption that they hold particular views simply because of their gender is ‘practically a brand upon them, affixed by the law, an assertion of their inferiority.’ Strauder v. West Virginia, 100 U.S. [303] at 308 (1880). . . . The message it sends to all those in the courtroom, and all those who may later learn of the discriminatory act, is that certain individuals, for no reason other than gender, are presumed unqualified by state actors to decide important questions upon which reasonable persons could disagree.”
Rice v. Collins (2006) 546 U.S. 333, 340.
Rice v. Collins, supra, 546 U.S. 333, 340.
Rice v. Collins, supra, 546 U.S. 333, 340.
J.E.B. v. Alabama ex rel. T.B., supra, 511 U.S. 127, 142.
Here, the prosecutor appeared to be searching for a gender-neutral explanation when he asked if Juror 9609 had been on a hung jury. She had not. He ultimately decided to excuse her to get a “balance of men and women” on the jury. The prosecutor’s attempt to achieve a superficial numerical balance of male and female jurors is an admission of discriminatory intent. Such conduct indicates a flawed assumption women share interchangeable views and a female juror may be struck and replaced by a male juror to create a representative cross-section of the community. J.E.B. forbids exactly this sort of behavior because it legitimizes strikes based solely on gender stereotypes. Moreover, the prosecutor’s articulation of a “right to pick” what he believes constitutes “an appropriate jury” operated as a pretext for gender discrimination.
See J.E.B. v. Alabama ex rel. T.B., supra, 511 U.S. 127, 142.
State v. Chatwin (Utah App. 2002) 58 P.3d 867, 871-872 [finding the prosecutor’s attempt to “balance the composition of the jury to reflect the views of both men and women” was clearly “gender-based” and thus constituted constitutional error].
The trial court’s acceptance of the prosecutor’s explanation cannot be squared with the requirements of state and federal constitutional precedent. A prosecutor may not satisfy his burden of production by merely denying a discriminatory motive and asserting his good faith. “If these general assertions were accepted as rebutting a defendant’s prima facie case, the Equal Protection Clause ‘would be but a vain and illusory requirement. . . . ’ [Citation.]” The prosecutor provided no alternative gender-neutral reasons for Juror 9609’s dismissal, stating only he “selected her simply because [he] had no information about her.”
Purkett v. Elem, supra, 514 U.S. 765, 769.
Batson v. Kentucky, supra, 476 U.S. 79, 98.
The court’s own explanation that “other reasons [] were expressed” is similarly unfounded. Indeed, no other reasons were expressed. Unlike the prosecutor in Rice, whooffered the race and gender-neutral explanation of “eye rolling” in addition to the invalid “gender balancing” basis, there is nothing in this record to suggest there were alternative reasons for Juror 9609’s dismissal at the time the trial court denied appellant’s first Wheeler motion.
Rice v. Collins, supra, 546 U.S. 333, 341.
In addition to the lack of alternative bases for Juror 9609’s dismissal, the trial court also erred in accepting the “balance of type of juror” analysis because it was impermissibly vague. In People v. Allen,the California Court of Appeal said a peremptory challenge “based on ‘[juror’s] demeanor’ without a fuller description . . . provides no indication of what the prosecutor observed, and no basis for the court to evaluate the genuineness of the purported non-discriminatory reason for the challenge.” The Allen court reasoned, “If the explanation given by the prosecutor here were deemed sufficient, the entire point of requiring an explanation would be vitiated. All the prosecutor would need do is repeat the mantra that he did not like the prospective juror’s ‘demeanor’ or clothing, and the trial court would be entitled to presume that the prosecutor was not influenced by the race or ethnicity of the prospective juror. Such a conclusion would effectively eliminate the second step of the Batson/Wheeler analysis . . . .”
People v. Allen (2004) 115 Cal.App.4th 542, 551.
People v. Allen, supra, 115 Cal.App.4th 542, 553.
So too in the case at bar. Even though the prosecutor did not assert a demeanor-based justification, his desire to achieve an “appropriate jury” via a “balance of type of juror” is equally vague. The record provides no insight as to what constitutes an “appropriate jury” in the eyes of the prosecutor because of his lack of specific reasons. Blind acceptance of such a hollow reason would vitiate the protections afforded by Batson and Wheeler.
The trial court’s decision to revisit the Wheeler motion it had previously denied poses an unprecedented factual scenario. State and federal courts are torn between whether to consider a prosecutor’s dual motivations in allowing permissible reasons to stand in for impermissible ones or whether a prosecutor’s credibility is “tainted” the moment he states an improper justification. In my view, any approach which permits a prosecutor to strike a juror based in part on an improper reason cannot be squared with Batson’s unqualified requirement a prosecutor offer a neutral explanation for its peremptory challenge.
See generally, Annotation, Adoption and Application of “Tainted” Approach or “Dual Motivation” Analysis in Determining Whether Existence of Single Discriminatory Reason for Peremptory Strike Results in Automatic Batson Violation When Neutral Reasons Also Have Been Articulated (2006) 15 A.L.R. 6th 319; see also, Covey, The Unbearable Lightness of Batson: Mixed Motives and Discrimination in Jury Selection (2007) 66 Md.L.Rev. 279.
Batson v. Kentucky, supra, 476 U.S. 79, 98.
I would hold the trial court failed to make the required “sincere and reasoned effort” to evaluate the prosecutor’s snickering explanation in light of its pretextual timing and the “taint” of the prosecutor’s previous remarks. Having a whole evening to develop a gender-neutral basis for excusing Juror 9609 detracts from the genuineness of the prosecutor’s explanation. For example, in People v. Fuentes, the prosecutor took three hours to review his notes regarding why he dismissed several African-American jurors. He then spent two hours gleaning explanations from the transcripts as defense counsel questioned whether the purported justifications were the real “reasons” behind a juror’s exclusion. While the delay issue in Fuentes was not dispositive, the trial court noted ‘“the People were using kind of a shotgun approach to the reasoning [justification] process, hoping that something would fly . . ..’” Here, the prosecutor seemed to recognize his credibility was in question when he brought his supervisor to court to testify to his veracity in recalling the “snickering explanation” prior to the clerk’s phone call. While I appreciate the prosecutor’s efforts to correct his earlier error, I am troubled by the trial court’s decision to reopen the ruling to allow the prosecutor to supplement the record without regard to the previous day’s reliance on an unconstitutional explanation for his challenge of Juror 9609.
People v. Fuentes, supra, 54 Cal.3d 707, 712.
People v. Fuentes, supra, 54 Cal.3d 707, 712.
People v. Fuentes, supra, 54 Cal.3d 707, 719.
The trial court’s decision to revisit the Wheeler motion the next morning ostensibly gave the prosecutor an “opportunity to put anything else on the record as far as [his] reasons for exercising that peremptory.” After hearing the snickering rationale, the court stated there was no “reason to doubt [the prosecutor’s] sincerity . . . .” Although reviewing courts generally accord great deference to the trial court’s ruling on appeal, such deference is only appropriate when the trial court has made a “sincere and reasoned effort to evaluate the nondiscriminatory justifications offered. . . .” But such deference is not warranted when the prosecutor offers a constitutionally unacceptable reason and a day later offers a neutral explanation which palpably reeked of afterthought.
People v. Burgener (2003) 29 Cal.4th 833, 864.
Thus, considering the previous day’s remarks in the totality of the circumstances, the prosecutor’s explanation was no longer entitled to a presumption of constitutionality. This principle was explored in Miller-El v. Dretke in the context of a prosecutor’s misrepresentation of a juror’s response while defending a peremptory strike. Instead of responding to defense counsel’s concern or withdrawing the strike, the prosecutor came up with an alternate basis for the strike. Even though this case deals with an unconstitutional strike rather than misrepresentation, the Supreme Court’s analysis still applies. In reviewing the prosecutor’s response, the Supreme Court wrote, “It would be difficult to credit the State’s new explanation, which reeks of afterthought. . . . [T]he court’s readiness to accept the State’s substitute reason ignores not only its pretextual timing but the other reasons rendering it implausible.”
Hernandez v. New York (1991) 500 U.S. 352, 363 [prosecutor’s motives inferred from the totality of the circumstances].
Miller-El v. Dretke, supra, 545 U.S. 231, 246.
Miller-El v. Dretke, supra, 545 U.S. 231, 246.
In this case the trial court failed to make a sincere and reasoned effort in determining whether the post hoc snickering excuse was “the reason [that] actually prompted the prosecutor’s exercise of the particular peremptory challenge.” The trial court’s observation four or five out of 12 sitting jurors were African-American was surely indicative of good faith, but not conclusive. The prosecutor’s assertion of an impermissible gender justification followed by the delayed timing of his snickering explanation certainly should have prompted the trial court to doubt the prosecutor’s sincerity.
People v. Fuentes, supra, 54 Cal.3d 707, 720, italics added.
People v. Ward, supra, 36 Cal.4th 186, 203.
But there is a still more fundamental reason for finding Batson-Wheeler error in this particular case. Accepting for the sake of argument the genuineness of the prosecutor’s belated second justification for striking juror 9609, that second justification cannot remove the taint of his initial clearly unconstitutional reason for challenging that juror. I recognize some state and federal courts are divided on the issue whether to apply a mixed-motive, or dual-motive, analysis in this context or to regard the taint of an unconstitutional reason once tendered as essentially unremovable. At this point, the United States Supreme Court has not approved the mixed-motive approach. Nor has the California Supreme Court condoned such an analysis. In my view, to do so would eviscerate the very anti-discrimination principles and protections the Wheeler and Batson decisions strove to establish. Accepting a mixed or dual-motive analysis encourages obfuscation, fails to recognize unconscious bias, and substantially complicates an already highly speculative and easily evaded inquiry. I would not endorse such an approach as a general matter. But in this case, I believe it particularly inappropriate. Here the prosecutor’s belated race and gender neutral justification is so subjective and minimally relevant to a juror’s suitability as to be the substantial equivalent of the “I don’t like her looks” category of explanations found to be constitutionally inadequate.
See generally, Annotation, Adoption and Application of “Tainted” Approach or “Dual Motivation” Analysis in Determining Whether Existence of Single Discriminatory Reason for Peremptory Strike Results in Automatic Batson Violation When Neutral Reasons Also Have Been Articulated (2006) 15 A.L.R. 6th 319; see also, Covey, The Unbearable Lightness of Batson: Mixed Motives and Discrimination in Jury Selection (2007) 66 Md.L.Rev. 279.
The California Supreme Court had the opportunity to address the dual-motive, mixed-motive issue in both People v. Schmeck (2005) 37 Cal.4th 240, 275-276 and In re Freeman (2006) 38 Cal.4th 630 but decided both cases without reaching the issue.
Even if one adopts a “dual motive” approach, the prosecutor’s asserted “snickering” motive is too weak to overcome the much more powerful as well as more credible, although also unconstitutional, motive, he initially tendered to the court. The dominant motive for this challenge was the prosecutor’s discriminatory intent to strike this female juror in order to achieve what he perceived to be a more favorable gender balance on the jury. Even assuming he picked this particular female to remove—in preference to striking one of the other women—because she “snickered” at something another juror said neither removes the “taint” of that unconstitutional purpose nor turns the “snickering” into the dominant motive for the challenge. Having admitted to his goal of achieving gender balance on the jury by striking at least one female juror, the prosecutor cannot sidestep Batson-Wheeler error by explaining why he chose a particular woman as the one to remove in achieving that unconstitutional purpose.
For these reasons it is my view the trial court did not satisfy its Batson-Wheeler obligations. In this context, “[t]he error is prejudicial per se: ‘The right to a fair and impartial jury is one of the most sacred and important of the guaranties of the constitution. Where it has been infringed, no inquiry as to the sufficiency of the evidence to show guilt is indulged and a conviction by a jury so selected must be set aside.’ [Citations.]” Because the unconstitutional dismissal of a single juror, as occurred in this case, provides sufficient grounds for reversal, I would be compelled to reverse the entire judgment for Batson/Wheeler error—both that part based on the attempted murder conviction as well as that based on the murder conviction.
People v. Wheeler, supra, 22 Cal.3d 258, 283.
People v. Silva (2001) 25 Cal.4th 345, 386.
I fully recognize the cost the system must pay should the second conviction underlying this judgment also be reversed—and do not take it lightly. This is a criminal defendant against whom the evidence presented to the jury is undeniably strong on both counts. Indeed if also instructed on a felony-murder or provocative act theory, that jury might even have produced a valid murder verdict despite the trial court’s failure to give the proximate cause instruction—assuming the jury also had been constitutionally composed. But in the context of criminal trials the enforcement of constitutional composed. But in the context of criminal trials the enforcement of constitutional guarantees is seldom without price. No doubt it is tempting to overlook the prosecutor’s admitted gender discrimination and possible racial discrimination during jury selection in order to avoid requiring the expense of a retrial that might well result in the identical verdict. But to do so is to turn the Constitution and its disapproval of discriminatory jury challenges into a worthless scrap of paper. Constitutional rights that can be violated with impunity are not rights at all, but only illusions. So, having found Batson-Wheeler error I would reverse the judgment in its entirety.
“An act causes (injury/ _____ ) if the (injury/ _____ ) is the direct, natural, and probable consequence of the act and the (injury/ _____ ) would not have happened without the act. A natural and probable consequence is one that a reasonable person would know is likely to happen if nothing unusual intervenes. In deciding whether a consequence is natural and probable, consider all the circumstances established by the evidence.”
“[There may be more than one cause of (injury/ _____ ). An act causes (injury/ _____ ), only if it is a substantial factor in causing the (injury/ _____ ). A substantial factor is more than a trivial or remote factor. However, it does not have to be the only factor that causes the (injury/ _____ ).]”
CALCRIM 620 provides in relevant part:
“There may be more than one cause of death. An act causes death only if it is a substantial factor in causing the death. A substantial factor is more than a trivial or remote factor. However, it does not need to be the only factor that causes the death.”