Opinion
A145297
01-03-2017
THE PEOPLE, Plaintiff and Respondent, v. WILLIAM R. HICKS, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Francisco City & County Super. Ct. No. 223692)
Defendant William R. Hicks appeals from his conviction, following a jury trial, of misdemeanor assault (Pen. Code, § 240). He raises a single issue on appeal—that the prosecutor improperly exercised a peremptory challenge against the only African-American prospective juror. We affirm.
All further statutory references are to the Penal Code.
BACKGROUND
On the evening of February 4, 2015, defendant was sleeping in the driveway of Albert and Donna Esteban-Lee's Mission District home. When Donna opened her garage door, she saw defendant. Defendant, now awake, walked toward a neighbor's house, but Donna followed, making him move from that house, as well. As Donna continued to follow defendant, he pushed her "to get her out of the way." Donna fell to the ground hitting her head and back on the concrete.
We refer to Albert Lee and Donna Esteban-Lee by their first names for the sake of clarity.
Nathan Blau, a neighbor on his way home, heard a "sort of like smacking noise," which caught his attention. He saw defendant round the corner and Donna on the ground. Donna called out for help and Blau, Albert and another neighbor, Abdulla Al-Qawasmeh, went over to her. Donna explained what had happened and the three men followed defendant.
Defendant "felt threatened," and told Albert to move back. When Albert did not do so, defendant "swung at him and hit [him] across the cheek." Blau thought defendant struck Albert "with a closed fist and sort of a backhand motion." Albert was knocked unconscious as his head hit the concrete. Al-Qawasmeh stayed with Albert and called an ambulance. Blau, who identified defendant at trial, continued to follow him until police arrived and arrested him.
Following the preliminary hearing, defendant was charged by information with two counts of assault with force likely to cause great bodily injury (§ 245, subd. (a)(4); counts 1 and 3) with enhancements for personal infliction of great bodily harm (§§ 12022.7, subd. (a), 1192.7, subd. (c)(8)), one count of battery with serious bodily injury (§ 243, subd. (d); count 2) and one count of elder abuse likely to cause great bodily injury (§ 368, subd. (b)(1); count 4).
The jury found defendant guilty only of the lesser included offense of simple assault (§ 240) and was unable to reach a verdict or found him not guilty on the other charges. The trial court dismissed the charges as to which the jury could not reach a verdict, and suspended imposition of sentence on the assault conviction and placed him on three years' probation subject to numerous terms and conditions, including serving two days in jail (with two days' credit for time served).
DISCUSSION
Defendant, who is African-American, contends the trial court violated his state and federal constitutional rights by denying his Batson/Wheeler motion following the prosecutor's exercise of a peremptory challenge excluding the only African-American from the jury panel.
Batson v. Kentucky (1986) 476 U.S. 79 (Batson); People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler), overruled in part by Johnson v. California (2005) 545 U.S. 162, 165-173. --------
"Both the state and federal Constitutions prohibit the use of peremptory challenges to exclude prospective jurors based on race or gender. [Citations.] Such a use of peremptories by the prosecution 'violates the right of a criminal defendant to trial by a jury drawn from a representative cross-section of the community under article I, section 16 of the California Constitution. [Citations.] Such a practice also violates the defendant's right to equal protection under the Fourteenth Amendment to the United States Constitution.' " (People v. Bonilla (2007) 41 Cal.4th 313, 341.)
The process by which a Batson/Wheeler motion is resolved is well-established. " '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." [Citation.] 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." ' " (People v. Elliott (2012) 53 Cal.4th 535, 559.)
"A prima facie case of racial discrimination in the use of peremptory challenges is established if the totality of the relevant facts gives ' "rise to an inference of discriminatory purpose." ' " (People v. Thomas (2012) 53 Cal.4th 771, 793-794, quoting Johnson v. California, supra, 545 U.S. at p. 168.)
" '[W]hen a trial court denies a Wheeler motion without finding a prima facie case of group bias the reviewing court considers the entire record of voir dire. [Citations.] As with other findings of fact, we examine the record for evidence to support the trial court's ruling. Because Wheeler motions call upon trial judges' personal observations, we view their rulings with "considerable deference" on appeal. [Citations.] If the record "suggests grounds upon which the prosecutor might reasonably have challenged" the jurors in question, we affirm.' " (People v. Mayfield (1997) 14 Cal.4th 668, 723, overruled on another ground as stated in People v. Scott (2015) 61 Cal.4th 363, 390, fn. 2; People v. Bonilla, supra, 41 Cal.4th p. 341.)
Where the trial court rules the defendant made a prima facie showing and further rules the prosecutor offered a permissible race-neutral justification, we examine "only whether substantial evidence supports [the trial court's] conclusions. [Citation.] '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.' " (People v. Lenix (2008) 44 Cal.4th 602, 613-614; People v. Chism (2014) 58 Cal.4th 1266, 1314-1315.)
In some appeals, whether the defendant made a prima facie showing may be a moot point. As described in Hernandez v. New York (1991) 500 U.S. 352 (Hernandez), a case can be a first stage/third stage Batson hybrid, in which " 'the question of whether defendant established a prima facie case is moot.' " (People v. Mills (2010) 48 Cal.4th 158, 174.) However, "Hernandez held that the issue of whether the defendant had made a prima facie showing of discrimination was moot only in the particular circumstance where the trial court failed to consider whether a prima facie showing had been made, and ruled instead on the ultimate question of intentional discrimination." (People v. Scott, supra, 61 Cal.4th at p. 393; see People v. Sattiewehite (2014) 59 Cal.4th 446, 496 [declining to treat case as first stage/third stage Batson hybrid, as this applies "only when the trial court explicitly or implicitly evaluates the prosecutor's stated reasons" and the court's "final words on the matter were not an express or implied comment on the prosecutor's reasons, but a reiteration, . . . that the court had already made its finding"].)
While defendant provides a lengthy discussion of basic Batson/Wheeler principles in his opening brief, it is not entirely clear what his argument is on appeal. Though defendant urges the court to view this case as a "hybrid" under Hernandez, he provides virtually no discussion of how the facts and circumstances of this case show any error. The Attorney General also views this as a Hernandez situation and contends the record amply supports the trial court's implicit, if not explicit, ruling that the prosecutor had a permissible race-neutral justification for the challenge.
We conclude the trial court did not err—either in ruling defendant failed to make out a prima facie showing or in ruling the prosecutor had a permissible race-neutral justification for challenging prospective Juror No. 3592679.
No Prima Facie Showing
When the prosecution exercised a peremptory challenge to dismiss Juror No. 3592679, defense counsel made a Batson/Wheeler objection outside the presence of the jury.
The trial court determined, based on the totality of the circumstances, defendant had not raised "a reasonable inference that the challenge [of Juror No. 3592679] was used for a group, based on group bias alone." The court went on to note the prosecutor had not asked for, nor had he provided, any reasoning. "[T]he Court did not require [a reason] in order [to] make its decision. But there was no prima facie case."
However, in an informal conversation, the court observed the prosecutor "as is authorized by law and without waiving any procedural or substantive rights, did refer to various factors that went into the decision" to challenge Juror No. 3592679, which the court summed up as dealing with prospective Juror No. 3592679's past homelessness and views on people who are homeless. The court noted the prosecutor "did not refer to [Juror No. 3592679's] summary of her feelings regarding the black experience in the United States in general, and the position generally of blacks in this country." However, the court recalled Juror No. 3592679's statement that the "criminal justice system treated blacks worse than anybody else, and that at least gave rise to the inference that the defendant might be being treated worse than others." The court stated it believed this "was a neutral reason."
The court then allowed defense counsel to outline various aspects of the voir dire that indicated an improper peremptory challenge. These included that Juror No. 3592679 was not the only juror to express comments on race and the criminal justice system, she was well-educated, she had experienced homelessness as well taking responsibility for her own actions, and she was not "troubled by state of the criminal justice system such that it would impair her ability to return guilty verdicts."
The trial court then observed "the District Attorney exercised challenges against others who had approximate, similar, or less potential views that might be unfavorable to the District Attorney. [¶] The answers that [Juror No. 3592679] gave, her statements regarding some things, were answers and statements that were not favorable to the District Attorney. Just like others the District Attorney challenged that gave answers that were not favorable to the[m]. [¶] . . . [¶] So that was the record. [¶] And that was the Court's own decision. And the Court reaffirms that decision now."
"When a trial court denies a motion under [Batson/Wheeler] after finding no prima facie case of group bias, we consider the entire record of voir dire for evidence to support the trial court's ruling. If the record suggests grounds upon which the prosecutor might reasonably have challenged the prospective jurors in question, we affirm." (People v. Yeoman (2003) 31 Cal.4th 93, 116; People v. Bonilla, supra, 41 Cal.4th at p. 341 ["we review the trial court's denial of a Wheeler/Batson motion deferentially, considering only whether substantial evidence supports its conclusions"].)
The trial court did not err in concluding no prima facie case had been made out by defendant. Juror No. 3592679 was questioned on her experience with homelessness, her potential bias toward the criminal justice system, and how she viewed defendants who are African-American and/or homeless. All of her responses to these questions, both individually and collectively, were, as the trial court observed, "not favorable to District Attorney" and were valid neutral reasons for a peremptory challenge. Thus, no prima facie showing was made. (People v. Booker (2011) 51 Cal.4th 141, 167, fn. 13 ["A negative experience with the criminal justice system is a valid neutral reason for a peremptory challenge."]; People v. Neuman (2009) 176 Cal.App.4th 571, 585-588 [trial court held no prima facie case made when prosecutor could have used several grounds to exclude prospective jurors].)
No Showing of Purposeful Discrimination
"Review of a trial court's denial of a Wheeler/Batson motion is deferential, examining only whether substantial evidence supports its conclusions." (People v. Lenix, supra, 44 Cal.4th at p. 613.) " '[T]he issue comes down to whether the trial court finds the prosecutor's race-neutral explanations to be credible.' " (Ibid.)
Defendant has provided no developed argument that the trial court erred in ruling defendant failed to show the prosecutor purposefully discriminated. Accordingly, he has waived the issue. (Jones v. Superior Court (1994) 26 Cal.App.4th 92, 99 ["Issues do not have a life of their own: if they are not raised or supported by argument or citation to authority, we consider the issues waived."].) However, even assuming defendant has not waived the issue, substantial evidence supports the trial court's determination the prosecutor challenged Juror No. 3592679 for a race-neutral reason, including because of Juror No. 3592679's views regarding homelessness and the criminal justice system, her sympathy for homeless individuals (having been in the position herself), and her concern about the treatment of African-Americans within the criminal justice system (as an African-American woman who had, herself, been arrested).
Defendant's attempt at a comparative juror analysis is not persuasive. While other prospective jurors, including Juror Nos. 3703318 and 3755168, expressed similar discomfort with the treatment of African-Americans in the criminal justice system, defense counsel herself excused Juror No. 3703318. And Juror No. 3755168 stated that while he thought "the system was stacked against" African-Americans, he did not think the trial was "stacked against this defendant, right now." Defendant also points to Juror No. 3744144, who expressed the view violent acts committed by homeless people are usually the result of mistreatment. However, the prosecution also excused Juror No. 3744144.
"Comparative juror analysis is a form of circumstantial evidence. [Citation.] The law has long recognized that particular care must be taken when relying on circumstantial evidence. . . . [¶] [C]are must be taken not to accept one reasonable interpretation to the exclusion of other reasonable ones. With regard to an appellate court's review of circumstantial evidence, we have observed: ' " 'If the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also be reasonably reconciled with a contrary finding does not warrant a reversal of the judgment.' " ' [Citation.] This same principle of appellate restraint applies in reviewing the circumstantial evidence supporting the trial court's factual findings in a Wheeler/Batson holding." (People v. Lenix, supra, 44 Cal.4th at pp. 627-628.) The trial court was provided with multiple, race-neutral bases for the prosecutor's challenge, and substantial evidence supports the court's determination there was no purposeful discrimination in that challenge.
DISPOSITION
The judgment is affirmed.
/s/_________
Banke, J. We concur: /s/_________
Humes, P.J. /s/_________
Dondero, J.