Opinion
NOT TO BE PUBLISHED
Alameda County Super Ct. No. C151440
Judge of the Contra Costa County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
A jury convicted appellant Prentist Ivory, Jr., of second degree robbery (Pen. Code, § 211), determined he knew the victim was over 65 (§ 667.9, subd. (a)) and that he inflicted great bodily injury on a person over 70 (§ 12022.7, subd. (c)). The trial court found appellant had suffered 17 prior convictions and sentenced him to an aggregate term of 79 years to life in state prison.
All further statutory references are to the Penal Code unless otherwise indicated.
On appeal, appellant contends: (1) the prosecutor used two peremptory challenges to exclude two African-Americans from the jury panel and the court erroneously denied his Batson/Wheeler motion; and (2) the court erred by failing to instruct the jury sua sponte on theft as a lesser included offense to robbery. We affirm.
Batson v. Kentucky (1986) 476 U.S. 79, 95-96 (Batson); People v. Wheeler (1978) 22 Cal.3d 258, 276-277 (Wheeler), disapproved on another ground in Johnson v. California (2005) 545 U.S. 162, 166-168 (Johnson).
Factual and Procedural Background
On October 27, 2005, Jacqueline Colterjohn, 79 years old, entered an Oakland grocery store. As she returned to her car, she carried her purse over her left shoulder and her car keys in her right hand. When she reached her car, a man later identified as appellant “came up behind [her] and grabbed [her] purse.” Colterjohn was “frightened” and “petrified.” She tried to hold on to her purse but the man pulled it away from her and knocked her down. She fell to the ground on her right side, felt pain in her right arm and shoulder, and was unable to get up. After grabbing her purse and knocking her down, the man ran away. Colterjohn, who did not get a good look at the man’s face, could only state he was an African-American male and could not identify appellant at trial.
Paramedics took Colterjohn to the hospital where she was treated for an injured right arm and shoulder. Colterjohn left the hospital the next day with her arm in a sling and spent eight months in physical therapy.
Gary Johnson, a grocery store security guard, watched Colterjohn walk to her car. He saw a man walking toward Colterjohn. Johnson looked away briefly and heard someone shout, “ ‘Gary, he just snatched that lady’s purse.’ ” Johnson saw Colterjohn lying on the ground, and saw appellant running away with a purse in his hand. Johnson identified appellant at trial.
The jury convicted appellant of second degree robbery and found the age enhancements true. The court found appellant had suffered 17 prior convictions and sentenced him to 79 years to life in state prison.
Of appellant’s 17 prior charged felonies, 10 were matters on which he had served terms in state prison (§ 667.5, subd. (b)), 6 were serious felonies (§ 667 subd. (a)(1)), and 6 qualified as strikes (§§ 667, subd. (e)(2)(A), 1170.12, subd. (c)(2)(A)).
The Batson/Wheeler Motion
During voir dire, three African-American jurors were excused; one by stipulation, and two jurors (Juror Nos. 133 and 142) by prosecution exercise of peremptory challenges. After the prosecutor excused Juror Nos. 133 and 142, defense counsel made a Batson/Wheeler motion. He argued “there have been three potential jurors of African-American origin seated in the box. The first one was excused pursuant to a stipulation. [¶]... [¶]... after that [Juror No. 142]... was excused by the prosecutor. And just now, [Juror No. 133] was excused.... She is also African-American. And therefore, these three people are part of a cognizable group, and it appears that the challenges are based on their being in that group. All of them said that they could be fair, and whatever background they had wouldn’t affect their ability to serve as impartial jurors in this case.”
We refer to jurors and prospective jurors by their juror identification number to protect their privacy. (See, e.g., Code Civ. Proc., §§ 206, 237; People v. Bennett (2009) 45 Cal.4th 577, 618-619; Cal. Rules of Court, rule 8.332(b).)
The Juror Voir Dire Responses
Juror No. 133 was a financial aid counselor at University of California and also worked as a counselor at a group home for girls in Oakland. She had a bachelor’s degree in psychology. Within the preceding year she had dated a man whose “son’s up for a murder charge. He’s in Santa Rita.... He hasn’t been to trial yet.” She has also had “debates” with a friend, a public defender. She said that these debates did not impact her ability to sit as a juror, but she “bring[s] to court those discussions.” She explained, “I bring to court... diversity issues. I bring to court the information of whether or not the public defender can actually defend... [t]he client... versus someone who is more powerful and has more money and can get a better attorney.”
She elaborated on her “diversity issues” by noting “I’ve done a lot of diversity and inclusions classes.... [W]hen I’m looking at [a] person, I do see a [B]lack man over there that is older, and you do have prejudg[ments] that you come up here with.... So yes, I’m coming with certain biases just being who I am and being 50 years old. But I’ve done a lot of training to look at that, and I think it’s unfair when we ask that question. I think everyone comes with biases. It’s a matter of how you’re able to interpret and leave that at the table.” Later, Juror No. 133 noted that when she saw the defendant on the first day of jury selection, she “wouldn’t think that an older gentleman would be accused of a crime.... So that’s a personal bias... just looking at the accused defendant.” At the end of voir dire, she said there was nothing about the defendant’s age that would interfere with her ability to find him guilty.
Juror No. 142 explained that he works as a mentor at a center for at-risk youth. In this role, he interacts with young men—particularly African-American men—who were incarcerated and educated them about the “inequities in the criminal justice system.” He elaborated that he tells these young men “there’s a disproportionate representation of African-American males in the criminal justice system.” His job requires him to visit the California Youth Authority.
When asked whether there was anything that would prevent him from being fair or impartial in this case, Juror No. 142 gave this response: “Partly—What we do... at the [center] is educate the youth on injustices... in terms of their age, in terms of their ethnicity, that sort of thing. So we participate on both sides.... So one side we advocate, bring the youth, personally responsible... and the other side, we educate the youth to inequities and disparities in terms of their ethnicity, gender, that kind of thing. [¶]... [¶] So other than that, no.”
The court concluded counsel had made a prima facie case of group bias and asked the prosecutor for his response “with regards to whether those challenges are group neutral....” The prosecutor explained he challenged Juror No. 133 for several reasons: (1) her background in psychology and social work; (2) her “friend whose son was in Santa Rita currently accused of murder”; and (3) her “contentious personality.” The prosecutor also noted Juror No. 133 “admitted that she had an initial bias in terms of thinking that the defendant was an older man, and she admitted and acknowledged that bias, and said that she could set it aside. But it was a combination of her acknowledging those things, personality aspects, considering whether she could get along with other jurors. She seemed... to [have] signs that she could potentially be difficult in the jury deliberation room in getting along with others.”
The prosecutor explained he was limited in the amount of questions he could ask Juror No. 142 because of the length of Juror No. 142’s responses. The prosecutor also noted he was “never able to secure from [Juror No. 142’s] answers related to whether he could put his extensive experience working with troubled and at-risk youth aside, and whether it would have any impact on him in this particular case. He indicated that he had a background in sociology, that he works at a mentor center, where he works with at-risk youth, which includes him making visits to young offenders who have been imprisoned at CYA. His experiences have a lot to do with educating young African-American males on inequities and injustices that may exist in the criminal justice system. And given his extensive contacts with that particular community, it seemed to me that there was certainly a risk that he would be more sympathetic to the defense.”
After considering the prosecutor’s explanations, the court denied the Batson/Wheeler motion. It explained it “accept[ed] counsel’s justifications for the excusal” of Juror Nos. 133 and 142 “as being constitutionally valid, in that [the prosecutor] did take into consideration factors that do not appear, in my opinion, to be pretextual.”
Discussion
The Court Properly Denied Appellant’s Batson/Wheeler Motion
The California and federal Constitutions forbid a prosecutor from excluding prospective jurors from the jury for a racially discriminatory purpose. (Batson, supra, 476 U.S. at pp. 84-89, 95-96; Wheeler, supra, 22 Cal.3d at pp. 276-277.) The prosecution may not exercise peremptory challenges solely on the basis of presumed group bias, i.e., on the presumption “jurors are biased merely because they are members of an identifiable group distinguished on racial... or similar grounds.” (Wheeler, supra, 22 Cal.3d at p. 276.) The “exclusion by peremptory challenge of a single juror on the basis of race or ethnicity is an error of constitutional magnitude requiring reversal.” (People v. Silva (2001) 25 Cal.4th 345, 386.)
The following procedure applies to a Batson/Wheeler challenge to a peremptory strike: “ ‘ “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.’ ” ’ ” (People v. Zambrano (2007) 41 Cal.4th 1082, 1104, overruled on another point in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22; see also Johnson, supra, 545 U.S. at p. 168.)
“The proper focus of a Batson/Wheeler inquiry, of course, is on the subjective genuineness of the race-neutral reasons given for the peremptory challenge, not on the objective reasonableness of those reasons. [Citation.] So, for example, if a prosecutor believes a prospective juror with long, unkempt hair, a mustache, and a beard would not make a good juror in the case, a peremptory challenge to the prospective juror, sincerely exercised on that basis, will constitute an entirely valid and nondiscriminatory reason for exercising the challenge. [Citation.] It matters not that another prosecutor would have chosen to leave the prospective juror on the jury. Nor does it matter that the prosecutor, by peremptorily excusing men with long unkempt hair and facial hair on the basis that they are specifically biased against him or against the People’s case or witnesses, may be passing over any number of conscientious and fully qualified potential jurors. All that matters is that the prosecutor’s reason for exercising the peremptory challenge is sincere and legitimate, legitimate in the sense of being nondiscriminatory. ‘[A] “legitimate reason” is not a reason that makes sense, but a reason that does not deny equal protection. [Citations.]’ [Citation.]” (People v. Reynoso (2003) 31 Cal.4th 903, 924.) “ ‘A reason that makes no sense is nonetheless “sincere and legitimate” as long as it does not deny equal protection.’ ” (People v. Cruz (2008) 44 Cal.4th 636, 655 (Cruz).) “ ‘[E]ven a “trivial” reason, if genuine and neutral, will suffice.’ [Citation.]” (People v. Lenix (2008) 44 Cal.4th 602, 613 (Lenix).)
“At the third stage of the Wheeler/Batson inquiry, ‘the issue comes down to whether the trial court finds the prosecutor’s race-neutral explanations to be credible. Credibility can be measured by, among other factors, the prosecutor’s demeanor; by how reasonable, or how improbable, the explanations are; and by whether the proffered rationale has some basis in accepted trial strategy.’ [Citation.] In assessing credibility, the court draws upon its contemporaneous observations of the voir dire.” (Lenix, supra, 44 Cal.4th at p. 613, fn. omitted.) The ultimate question the trial court must determine is “whether the advocate allowed his or her calculus to be infected by racial bias and then lied to the court in an attempt to get away with it.” (Id. at p. 626.)
Review of a trial court’s denial of a Batson/Wheeler motion is deferential. (Lenix, supra, 44 Cal.4th at p. 626.) “ ‘We review the trial court’s ruling on purposeful racial discrimination for substantial evidence. [Citation.] It is presumed that the prosecutor uses peremptory challenges in a constitutional manner.’ ” (Zambrano, supra, 41 Cal.4th at p. 1104; People v. Turner (1994) 8 Cal.4th 137, 165 [“There is a presumption that a prosecutor uses his or her peremptory challenges in a constitutional manner”], overruled on different grounds in People v. Griffin (2004) 33 Cal.4th 536, 555, fn. 5.) “Since the trial judge’s findings [on this issue] largely will turn on evaluation of credibility, a reviewing court ordinarily should give those findings great deference” (Batson, supra, 476 U.S. at p. 98, fn. 21), “recogniz[ing] that such a ruling ‘requires trial judges to make difficult and often close judgments.’ ” (Wheeler, supra, 22 Cal.3d at p. 281.) Acknowledging that these determinations of credibility and demeanor lie “peculiarly within a trial judge’s province,” the United State Supreme Court has also stated that in making such decisions “ ‘in the absence of exceptional circumstances, [it] would defer to [the trial court].’ [Citation.]” (Snyder v. Louisiana (2008) ___ U.S.___ [128 S.Ct. 1203, 1208] (Snyder).)
Appellant complains the prosecutor’s reasons for challenging Juror Nos. 133 and 142 were “implausible and unsupported by substantial evidence.” The trial court found otherwise and we find no “exceptional circumstances” that would provide any basis to disagree.
Juror No. 133
The prosecutor explained that he believed Juror No. 133 would be an unsatisfactory juror because: (1) she had a background in psychology and social work; (2) her “friend whose son was in Santa Rita currently accused of murder”; (3) she had a “contentious personality”; and (4) she admitted having an age bias. This rationale is race-neutral, was found by the trial court to be credible, and is supported by substantial evidence in the record. (People v. Lewis (2006) 39 Cal.4th 970, 1009-1011.)
Appellant contends that, despite the express findings of credibility made by the trial judge, we must nevertheless conduct our own comparative analysis with other jurors not challenged to determine discriminatory intent, as required by our own Supreme Court in Lenix, and by the United States Supreme Court in Snyder and in Miller-El v. Dretke (2005) 545 U.S. 231. The court in Lenix, applying the standards of Miller-El and Snyder, held that comparative juror analysis is but one form of circumstantial evidence that is relevant, but not necessarily dispositive, in determining the issue of intentional discrimination at the second and third stages of a Batson/Wheeler claim, and must be considered by the trial court, and even for the first time on appeal “if relied upon by the defendant and the record is adequate to permit the urged comparisons.” (Lenix, supra, 44 Cal.4th at p. 622.) Neither our Supreme Court nor the United States Supreme Court have held that comparative juror analysis, standing alone, would be sufficient to overcome a trial court’s factual findings. (Id. at pp. 622, 626; see also People v. Cruz, supra, 44 Cal.4th at p. 659.)
Our Supreme Court has also recognized the “inherent limitations” of attempting to conduct such an analysis on a cold appellate record. (Lenix, supra, 44 Cal.4th at p. 622.) “In the trial court, however, advocates and trial judges watch and listen as the answer is delivered. Myriad subtle nuances may shape it, including attitude, attention, interest, body language, facial expression and eye contact. [¶]... [¶] For these reasons, comparative juror evidence is most effectively considered in the trial court where the defendant can make an inclusive record, where the prosecutor can respond to the alleged similarities, and where the trial court can evaluate those arguments based on what it has seen and heard.” (Id. at pp. 622-624.) An appellate court “ ‘is not privy to the unspoken atmosphere of the trial court—the nuance, demeanor, body language, expression and gestures of the various players. [Citation.]’ ” (People v. Johnson (2003) 30 Cal.4th 1302, 1320–1321, quoting Tolbert v. Page (9th Cir. 1999) 182 F.3d 677, 683-684, overruled on another point in Johnson, supra, 545 U.S. 162.)
No request was made of the trial court to conduct a comparative analysis in connection with this motion. As a consequence we consider only the responses by stricken panelists or seated jurors directly identified by the defendant in the claim of disparate treatment, applying the deference accorded to the trial court’s ultimate finding of no discriminatory intent. (Lenix, supra, 44 Cal.4th at p.624.)
Appellant contends that the prosecutor “challenged [Juror No. 133] because she had a friend whose son was in trouble with the law, but did not challenge other jurors who either had family members who were convicted of crimes or were themselves convicted of crimes.” As noted, he made no such argument in the trial court, despite an express invitation from the trial judge to advance any other grounds for the Wheeler/Batson motion. He directs our attention here to Juror Nos. 121, 125, 162, and 169, each of whom had a family member who had been arrested or convicted of a DUI or a drug offense.
Referred to by both appellant and respondent as Juror Nos. 2, 6, 7, and 12. We presume this refers to the seats the prospective jurors assumed in the jury box during voire dire.
We question whether the record here “is adequate to permit the urged comparisons.” (Lenix, supra, 44 Cal.4th at p. 622.) We observe first that focus on this single alleged similarity between these jurors, without consideration of the other characteristics, and responses (verbal and non-verbal), of each does not present the opportunity for any meaningful comparative analysis in this court. “Advocates do not evaluate panelists based on a single answer. Likewise, reviewing courts should not do so.” (Lenix, supra, 44 Cal.4th at p. 631.) To the extent that we are able to make the requested comparisons on the cold record, the responses of the other jurors, as the People point out, do not show that each was similarly situated to Juror No. 133.
Even focusing on the narrow factor that appellant identifies, appellant fails to show substantial similarity between Juror No. 133 and the other four members of the venire. Juror No. 121 was an architect who said that he had a cousin who “did jail time for drugs... between probably five and ten years ago,” and that his cousin had “probably” been treated fairly. Juror No. 125 was a Library Technical Assistant with the San Francisco Public Library and said that his father had been arrested for drug possession 30 years earlier. His mother had also been the victim of a purse snatch. Juror No. 162 was a realtor and had a family member who had a DUI “infraction or arrest” 20 years earlier. He was unequivocal in his answer that he would not be sympathetic to appellant. Juror No. 169 was the Director of Risk Management and Patient Safety for Kaiser Permanente. Her brother had been convicted of a DUI offense 30 years earlier, and she felt that it was “an excellent thing” since he had been sober ever since. Their circumstances, with family members involved in comparatively minor offenses in the distant past, were self-evidently quite different from those of a person with both a friend’s son then facing a murder prosecution and a niece currently accused of fraud.
We are also required to bear in mind “the question is not whether we as a reviewing court find the challenged prospective jurors similarly situated, or not, to those who were accepted, but whether the record shows that the party making the peremptory challenges honestly believed them not to be similarly situated in legitimate respects.” (People v. Huggins (2006) 38 Cal.4th 175, 233.) In this case, the prosecution was never given the opportunity to address this question at all.
Not only has appellant failed to show material similarity, here the prosecutor offered several additional race-neutral reasons for challenging Juror No. 133, specifically that she had: (1) a background in psychology and social work; (2) a contentious personality; and (3) an age bias. The prosecutor did not excuse Juror No. 133 merely because she once dated someone whose son was in jail.
The trial judge did make clear that she was, as required, making her findings based on the totality of the circumstances before her. She accepted the explanations advanced by the prosecutor and found them to be non-pretextual. Those findings are supported by substantial evidence.
Juror No. 142
Next, appellant contends substantial evidence does not support the court’s finding that the prosecutor’s peremptory challenge of Juror No. 142 was race-neutral. As stated above, the prosecutor excused Juror No. 142 because “[h]is experiences have a lot to do with educating young African-American males on inequities and injustices that may exist in the criminal justice system. And given his extensive contacts with that particular community, it seemed to me that there was certainly a risk that he would be more sympathetic to the defense.” These reasons were not implausible. (See Reynoso, supra, 31 Cal.4th at p. 916 [“[I]mplausible or fantastic justifications may (and probably will) be found to be pretexts for purposeful discrimination”].) A “prosecutor is entitled to exercise a certain number of peremptory challenges simply on a suspicion that the juror will be unfavorable to his or her cause....” (People v. Pinholster (1992) 1 Cal.4th 865, 914.) It is not implausible the prosecutor would harbor an honest concern that a person who counsels young men on the alleged inequities of the criminal justice system might be sympathetic to appellant. The prosecutor here had a legitimate, nondiscriminatory reason for excluding Juror No. 142; the prosecutor believed he would be unfavorable to the People’s case.
He makes no comparative analysis claim with respect to this juror.
Deferring, as we must, to the lower court’s determination, we conclude substantial evidence supports the finding that the prosecutor’s peremptory challenge of Juror No. 142 was not motivated by discriminatory intent. (Cruz, supra, 44 Cal.4th at p. 661.)
The Court Was Not Required to Instruct the Jury, Sua Sponte, on Theft As a Lesser Included Offense of Robbery
Appellant contends the court was required, on its own motion, to instruct the jury on theft from the person as a lesser included offense to robbery. In response, the People argue no instruction was required “[b]ecause there was no substantial evidence that the crime was less than robbery.” We agree.
“Theft in any degree is a lesser included offense to robbery, since all of its elements are included in robbery. The difference is that robbery includes the added element of force or fear. [Citation.] It also is settled law that, as a general proposition, the trial court is required to instruct on all lesser included crimes [citation], and this is true even though the defendant asks that the lesser offense instructions not be given.” (People v. Burns (2009) 172 Cal.App.4th 1251, 1256 (Burns); see also People v. Breverman (1998) 19 Cal.4th 142, 153.) The lesser included offense instruction should be given, however, only “where there is substantial evidence to support it.” (Burns, supra, at p. 1256, citing People v. DePriest (2007) 42 Cal.4th 1, 50.) In other words, “the trial court need not instruct on a lesser included offense whenever any evidence, no matter how weak, is presented to support an instruction, but only when the evidence is substantial enough to merit consideration by the jury.” (People v. Barton (1995) 12 Cal.4th 186, 195, fn. 4.)
Although he concedes there was “sufficient evidence for the jury to have found robbery occurred,” appellant seems to claim there was substantial evidence of theft because Colterjohn’s testimony was “ambiguous as to whether the force used was greater than that needed to simply seize the purse.” Appellant’s argument suffers from two fatal flaws. First, appellant mischaracterizes the record. Colterjohn testified “someone came up behind [her] and grabbed [her] purse.” She explained that her attempt to hold onto her purse was unsuccessful because “all of a sudden [her] purse was gone, and [she] was on the street, on the sidewalk. [She] was knocked down.” She also testified she was “petrified” and “scared” and that “[b]ecause of this taking of my purse, the action... of attacking me—perhaps that’s not the right word—caused me to be on the ground.” Finally, she stated she did not accidentally slip or trip.
We also note the evidence in the record that appellant attempted to simulate a gun in his pocket to deter his pursuers. A robbery is still in progress during flight from the scene, and force or fear used to carry the property away can satisfy this element of the offense. (People v. Pham (1993) 15 Cal.App.4th 61, 65-67.)
Second, in Burns, supra, the Second District rejected the very argument appellant makes here. There, the court held that a trial court is not required to give an instruction on theft as a lesser included offense of robbery “where a person wrests away personal property from another person, who resists the effort to do so” because “the crime is robbery, not merely theft.” (Burns, supra, 172 Cal.App.4th at p. 1257.) In Burns, the defendant “came up to [the victim] and grabbed the purse she was holding; she tried to hold onto it but his strength and his act in stepping on her foot overcame her resistance, and he got away with the purse.” (Ibid.) The Burns court held the defendant committed “robbery, and there is no basis in the record for a jury to find that it was nothing more than grand theft from the person.” (Ibid.) The same is true here. Appellant grabbed Colterjohn’s purse, knocked her to the ground, and ran away with the purse. As a result, there was no substantial evidence appellant committed theft and the court was not required to give a theft instruction. (Id. at pp. 1257, 1259; People v. Bordelon (2008) 162 Cal.App.4th 1311, 1320.)
Disposition
The judgment is affirmed.
We concur: Jones, P. J., Simons, J.