Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. RIF115383. Eric G. Helgesen, Judge. (Retired judge of the Tulare Super. Ct. assigned by the Chief Justice pursuant to Art. VI, § 6 Cal. Const.)
Elizabeth A. Missakian, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Garrett Beaumont and Gil Gonzalez, Supervising Deputy Attorneys General, and Gary Brozi, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
HOLLENHORST, Acting P. J.
I. INTRODUCTION
Defendant Adreian Michael Jamison appeals from his conviction of possession of cocaine base (Health & Saf. Code, § 11350, subd. (d) — a lesser included offense in count 1); transportation of cocaine base (Health & Saf. Code, § 11352, subd. (a) — count 2); resisting arrest (Pen. Code, § 148 — a lesser included offense in count 4; and destruction of cocaine base (Pen. Code, § 135 — count 6) and the true findings on enhancement allegations as to counts 1 and 2 under Health and Safety Code section 11370.2, subdivision (a). Defendant contends the trial court erred in (1) denying defendant’s motion to suppress evidence because the testimony of the police officer was not credible, and (2) denying defendant’s Wheeler/Batson motions after the prosecutor excused two African-American prospective jurors. We find no error, and we affirm.
From People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler), overruled in part by Johnson v. California (2005) 545 U.S. 162, 165, and Batson v. Kentucky (1986) 476 U.S. 79 (Batson).
II. FACTS AND PROCEDURAL BACKGROUND
Riverside Police Officer Chris Wagner was on patrol in a marked police car in the morning of February 25, 2004, in an area known for drug activity, prostitution, and gangs. After he saw a white Oldsmobile make a right turn without signaling, Officer Wagner made a U-turn and sped up to make a traffic stop of the Oldsmobile. The Oldsmobile turned right to enter a parking lot, again without signaling. Officer Wagner activated his lights and siren and stopped the Oldsmobile in the parking lot. Officer Wagner ran the license plate and determined that the Oldsmobile’s registration was expired. He pulled up behind the Oldsmobile, and as he walked toward it, he saw the driver, defendant, looking for something in the passenger compartment and under his seat.
Officer Wagner asked defendant for his license and registration, but defendant did not have either. Defendant did not appear to be under the influence of a controlled substance. He said he had purchased the Oldsmobile from someone named Leonard. Officer Wagner ran defendant’s name through dispatch and learned that defendant was on parole for narcotics offenses. Officer Wagner then searched defendant pursuant to the parole search terms and for being under arrest for driving without a license. Officer Wagner found a bag in the front pocket of defendant’s sweatshirt; the bag contained 20 to 30 white rocks that appeared to be rock cocaine and about one-half of a gram of marijuana.
Defendant started to become “fidgety,” and Officer Wagner reached for his radio to summon backup. Defendant turned, swung his fist, and struck the top of Officer Wagner’s head. Officer Wagner pushed defendant back, and defendant grabbed the rock cocaine, slipped out of his sweatshirt, and took off running. Officer Wagner radioed for help and ran after defendant. Officers Nick Kean and James Barrette joined the chase. During the chase, Officer Wagner saw defendant open the bag, crumble the rock cocaine, and throw it into the street. Officer Kean saw defendant pull something from his pants pocket and throw a white substance to the side as he was running.
Defendant tripped and fell, and Officer Kean took him into custody. Defendant struggled and put some of the rock cocaine into his mouth. The officers collected some of the substance from defendant’s mouth.
Officers returned to the chase route and recovered about six and one-half grams of drugs with packaging, which Officer Wagner estimated was one-quarter to one-third of the amount defendant originally had. The recovered substance was field tested positive for cocaine base. The officers also recovered .8 grams of marijuana. A search of defendant’s car revealed a nine-inch fixed blade knife and a small wooden billy club or bat under the driver’s seat.
Officer Wagner tape-recorded his encounter with defendant. The recording was played for the jury, and a transcript of the tape recording was provided to the jury.
Officer Wagner filled out a probable cause statement after defendant’s arrest. The purpose of the probable cause statement was to show that the officer had probable cause to believe a crime had occurred. In the probable cause statement, Officer Wagner stated he had stopped defendant for an expired registration, but the probable cause statement did not mention that defendant had made turns without signaling. However, the police report Officer Wagner prepared did state that Officer Wagner had observed defendant turning with no right blinker.
The parties stipulated that (1) on February 25, 2004, defendant knew of the nature of cocaine base as a controlled substance; (2) drugs recovered on that date had tested positive for cocaine base and weighed 3.07 grams without packaging; and (3) defendant had not remained free of prison custody for five years between prison priors.
A forensic technician testified, based on documentary evidence, that defendant had been convicted of selling cocaine and resisting arrest in 2001 and of violations of Health and Safety Code sections 11350 and 11351.5 in 1999.
Riverside County Deputy Sheriff Marc Bender testified as an expert witness on rock cocaine sales. In his opinion, if a person was stopped by the police, had in his pocket rock cocaine about the “size of a person’s fist,” took off running, threw the drugs and tried to eat them, after which the officers recovered about 3.07 grams of the drugs without packaging, and the person was not under the influence, then that person was selling drugs.
Evidence was introduced that on February 12, 1999, Officer Bruce Blomdahl went to the Riverside Inn (the Inn) based on information concerning narcotics dealing at the bus depot and the Inn. He saw two men leave the Inn, walk close to the bus station and discard something in a planter. The two men were arrested. Officer Blomdahl could not identify defendant in court, but the officer knew the name Adreian Jamison.
Retired Riverside Police Officer Jeffrey Fahy transported defendant and another person to be booked on February 12, 1999, and secured the men to a bench at the police station. Fahy noticed defendant fidgeting as if he was trying to bring his pants down. Fahy saw defendant’s hands “underneath his butt,” and then Fahy saw and heard something fall out of defendant’s hand and hit the ground. Fahy found a medium-sized rock wrapped in clear plastic material under the bench. Defendant accused Fahy of planting it on defendant. A field test of the substance was positive for rock cocaine, and the substance weighed 6.9 grams with packaging. A half gram of marijuana was found on defendant during booking.
A. Defense Evidence
Officer Gavin Lucero testified he had filled out a police department form for towing vehicles with respect to the Oldsmobile on February 25, 2004. A box on the form indicating that the vehicle was registered was marked “Yes.” On cross-examination, Officer Lucero testified that the last known registration on the vehicle was September 2001, and the registration was expired. He testified that if a temporary extension sticker had been on the vehicle’s window, he would have noted it on the report.
Defendant’s mother, Deborah Barber, testified defendant had used crack cocaine for nine or 10 years. Defendant had been released on parole in late 2003, and he often appeared to be high on drugs after that. Barber testified she did not believe defendant had been selling drugs because he did not have a fancy car, jewelry, or a cell phone.
Leonard Zachry testified that when he had owned the Oldsmobile, it had been impounded. He had obtained a temporary sticker to get the vehicle out and put the sticker in the window. He testified he was “pretty sure” the sticker was in the back windshield in February 2004. Zachry was arrested on February 17, 2004, and his wife/girlfriend sold the car to defendant. Zachry testified the toy bat found in the Oldsmobile belonged to Zachry’s son. Zachry did not know about the kitchen knife found in the car.
Defendant testified in his own behalf. He testified that on February 25, 2004, he had recently purchased the Oldsmobile, and a registration sticker was on its back window. He had not checked under the seat for knives or bats, and had never seen the bat or knife that were found in the search of the car.
When Officer Wagner stopped him, defendant explained he had just bought the car. A registration sticker was in plain view in the rear window, and defendant testified Officer Wagner said he saw the sticker. Defendant denied consenting to a search.
Defendant was a longtime user of cocaine and had many relatives who also used cocaine. He had pleaded guilty to possession of cocaine and possession of cocaine for sale in the past. He had drugs in his possession when Officer Wagner stopped him, but defendant was not selling drugs; his past experience had taught him not to do that anymore.
Defendant became scared when Officer Wagner found the drugs because defendant did not know he had the drugs. Defendant grabbed the drugs and took off running. He knew he would be arrested, and he just wanted to get high. He put some cocaine in his mouth and was breaking it down with his teeth, but he did not throw any away. He had not possessed the amount of rocks of cocaine Officer Wagner claimed to have found on him, and he did not possess the cocaine to sell. He intended to smoke the cocaine with friends. He did not strike any of the officers or resist them.
The jury found defendant guilty of possession of cocaine base (Health & Saf. Code, § 11350, subd. (a) — a lesser included offense in count 1); transportation of cocaine base (Health & Saf. Code, § 11352, subd. (a) — count 2); resisting arrest (Pen. Code, § 148 — lesser included offense in count 4); and a misdemeanor count of destruction of cocaine base (Pen. Code, § 135 — count 6.) In addition, the jury found true the allegations of prior convictions as to counts 1 and 2 under Health and Safety Code section 11370.2, subdivision (a) and found true two prior prison term allegations. The jury found defendant not guilty of possessing a billy club (Pen. Code, § 12020, subd. (a) — count 3); and force upon a peace officer (Pen. Code, § 243, subd. (b) — count 5).
The trial court sentenced defendant to 10 years in prison, consisting of the middle term of four years on count 2 and a three-year term for each of the two section 11370.2, subdivision (a), allegations. The trial court imposed a concurrent term for count 2, stayed the sentence for count 1, and stayed the terms for the prison priors.
III. DISCUSSION
A. Motion to Suppress
Defendant contends the trial court erred in denying his motion to suppress evidence because Officer Wagner did not have proper grounds for making a traffic stop or a patdown search. More specifically, defendant argues that Officer Wagner’s testimony was not believable, and the traffic stop was pretextual.
1. Background
Defendant moved before trial under Penal Code section 1538.5 to suppress evidence seized in a warrantless search. At the hearing on the motion, Officer Wagner testified he was patrolling the area of University and Chicago Avenues in Riverside on the morning of February 25, 2004. He noticed a white Oldsmobile with an expired registration from September 2001 make a right turn into a parking lot without using its right blinker.
Officer Wagner conducted a traffic stop and asked defendant, the driver of the Oldsmobile, for his license, registration, and insurance. Defendant responded that he did not have a driver’s license and told Officer Wagner he was on parole. Officer Wagner asked if he could search defendant for illegal items, and defendant consented. Officer Wagner then searched defendant based on consent, the arrest of defendant for driving without a license, and parole search terms. The search of defendant’s person revealed a large baggie of apparent rock cocaine.
Officer Wagner prepared a probable cause statement several hours after making the arrest and later wrote a report of the incident. In the probable cause statement, Officer Wagner stated he had pulled defendant over because of an expired registration. Officer Wagner had called in the license plate number of the vehicle and had been told that the license plate “was expired with a P & L on file.” Officer Wagner testified that a “P &L” meant that the registration was pending. When asked whether the car could be driven, Officer Wagner explained, “It depends on what it needs done, whether it needs smog, whether it’s something wrong with the vehicle that needs to be fixed. There has to be paperwork with the car saying they have an extension of the expired registration. They have to have a sticker in the back window that says it’s good for a certain amount of months after they filed for it.” Officer Wagner testified the Oldsmobile had not had such a sticker. In the police report of the incident, Officer Wagner stated that the vehicle stop had been based on turning without signaling.
Defendant testified at the hearing on the motion to suppress that he had been driving his cousin’s boyfriend’s car. The car had a pink sticker with a white “2” on it in the right side of the rear window. Defendant testified he had signaled his turns onto University and into the parking lot.
The trial court denied the motion to suppress without prejudice. Defense counsel renewed the motion, and a further hearing was conducted. At the second hearing, Officer Wagner testified he had reviewed portions of the audiotape he had made on February 25, 2004, during his stop and search of defendant. Officer Wagner was extensively questioned about inconsistencies between his testimony and the audiotape. The trial court again denied the motion to suppress.
2. Standard of Review
In ruling on a motion to suppress evidence, the trial court “‘sits as a finder of fact with the power to judge credibility, resolve conflicts, weigh evidence, and draw inferences . . . .’ [Citation.]” (People v. Needham (2000) 79 Cal.App.4th 260, 265.) On review, we make all presumptions in favor of the trial court’s express and implied factual determinations, and we uphold those findings if they are supported by substantial evidence. (Ibid.) We then independently review the reasonableness of the search or seizure under federal constitutional standards. (People v. Memro (1995) 11 Cal.4th 786, 846.)
3. Analysis
We find multiple bases for upholding the validity of the traffic stop and search.
a. Traffic stop
Officer Wagner testified he had conducted a traffic stop of defendant’s vehicle after seeing the vehicle make two right turns without signaling and after noticing that the vehicle’s registration was expired.
“‘To warrant the rejection by a reviewing court of statements given by a witness who has been believed by the trial court or the jury, there must exist either a physical impossibility that they are true, or it must be such as to shock the moral sense of the court; it must be inherently improbable and such inherent improbability must plainly appear.’” (People v. Watts (1999) 76 Cal.App.4th 1250, 1259.) Despite having numerous inconsistencies, Officer Wagner’s testimony as to the bases for the traffic stop was neither physically impossible nor inherently improbable. The trial court accepted Officer Wagner’s credibility, and we must accept that determination. (People v. Needham, supra, 79 Cal.App.4th at p. 265.) Thus, we conclude the traffic stop was valid.
b. Consent
When a suspect consents to a search, no search warrant is required. (People v. Robles (2000) 23 Cal.4th 789, 795.) Officer Wagner testified that he asked defendant if he could search defendant for “illegal items,” and that defendant agreed to the search. This consent rendered the search constitutional. (See ibid.)
Although the transcript of the tape recording Officer Wagner made of the traffic stop did not show a clear expressed consent, Officer Wagner testified that defendant gave an implied consent during a portion of the tape recording that the transcript showed to be inaudible. The trial court was entitled to rely on Officer Wagner’s testimony in regard to consent, and on appeal, we must accept the trial court’s finding on that factual issue if supported by substantial evidence. (People v. Needham, supra, 79 Cal.App.4th at p. 265.)
c. Parole search
A suspicionless parole search is constitutionally permissible because parolees lack a legitimate expectation of privacy, and the state has a substantial interest in supervising parolees and reducing recidivism. (Samson v. California (2006) 547 U.S. 843 [126 S.Ct. 2193, 2197-2198.) For such a search to be valid, however, the officer must be aware of the search condition at the time of the search. (People v. Sanders (2003) 31 Cal.4th 318, 331-332 & fn. 4.) In California, search conditions are automatically imposed on all parolees. (See People v. Lewis (1999) 74 Cal.App.4th 662, 667-668.)
Officer Wagner learned defendant was on parole before Officer Wagner conducted the patdown search, and defendant acknowledged his awareness of his parole terms before the officer conducted the search. There was no showing that the patdown search took place in an arbitrary, capricious, or harassing manner. Thus, the patdown search was a valid parole search. (People v. Hunter (2006) 140 Cal.App.4th 1147, 1152.)
d. Search pursuant to arrest
Finally, Officer Wagner arrested defendant for driving without a license. Officer Wagner was entitled to search defendant incident to that arrest. (See Gustafson v. Florida (1973) 414 U.S. 260, 266.)
B. Wheeler/Batson Motions
Defendant contends the trial court erred in denying his Wheeler/Batson motions after the prosecutor exercised peremptory challenges as to two African-American prospective jurors, Ms. L. and Mr. R.
1. Standard of Review
We “review the record independently to ‘apply the high court’s standard and resolve the legal question whether the record supports an inference that the prosecutor excused a juror’ on a prohibited discriminatory basis. [Citations.]” (People v. Bell (2007) 40 Cal.4th 582, 597.)
2. Background
a. Ms. L.
Ms. L. was the unemployed wife of a retired military man who worked as a human resources director for Lowe’s. Ms. L. stated she had “some reservations about this because of family situations.” She explained that two of her brothers were crack cocaine addicts, and a cousin had died from drugs. She believed some of her family members had not been treated fairly by the courts. She felt her niece had been sent to prison unfairly.
Ms. L. stated she had strong feelings against drug use. When defense counsel asked if she hated dope and dope dealers, she responded that she would not use the word hate because she was a Christian. She also stated she could “make a decision between what is presented to me in fairness” and that she could give defendant “a fair shake.”
Ms. L. further stated she had “sort of” lost her faith in the system because of the way her family members were treated. Ms. L. believed her niece had been treated with prejudice, and repeated that there was “no way she should be in prison.” Ms. L. stated she was skeptical about the court system because of her past experiences, and she could not say that defendant would receive a fair trial.
Defense counsel made a Wheeler/Batson motion based on the prosecutor’s exercise of a peremptory challenge as to Ms. L. The prosecutor explained her reasons for excusing Ms. L.: “My basis for kicking [Ms. L.] was that she — first of all, I’ll go towards her demeanor and body language. She seemed either very defensive, because she had her arms crossed, and also she seemed a little hostile by her body language. She didn’t think — particularly when she was talking about she didn’t think justice was done in terms of her niece and the way that the court system treated her niece. That was my concern in that aspect. [¶] When [another prospective juror, Ms. W.] was talking about the presumption of innocence and when she was saying she didn’t know if [Ms. W.] could be fair, [Ms. L.] was actually gesturing and was like disagreeing with [Ms. W.], and she kept shaking her head and had her arms crossed at that time in a very negative sort of way. [¶] Also, when I was speaking to her in terms of about the experience she had with her brothers and the court system, it sort of seemed like there was a negative experience or she may have distrusted law enforcement because of the way that they handled her brother’s cases and the way that they handled her niece’s cases. [¶] I noticed when she first walked into the courtroom she wouldn’t look at me, that she was frowning. When [defense counsel] was talking to her, and she was sitting in front of me, she kept looking away from me, and she seemed to be very hostile and defensive towards me.”
The trial court accepted the prosecutor’s reasons for excusing Ms. L. as valid, race neutral reasons. The trial court observed that Ms. L. “was very upset as I read her thing about the situation with her niece. She felt that the police officers lied in that case, did not take any steps to ascertain the truth. The claim in here is going to be that the officers lied.”
b. Mr. R.
Mr. R. was 18 years old. He described himself as single, a student, a certified emergency medical technician, and a volunteer firefighter. Although he stated he was a student, he also stated he had finished his courses three weeks earlier but had not enrolled for the upcoming semester. He stated he was a “[p]eople person, like outgoing, kind of.” He stated race did not really concern him, explaining, “I think we are all people. And like when I look at people, I don’t look at that person as [W]hite, Hispanic. Like race is not a big thing at all with me. I have no thoughts on it.” He further stated he had no feelings about the fact that both he and defendant were African-American.
In chambers, in the presence of both counsel, Mr. R. stated he was not a licensed driver, although he admitted he had driven to court that day. He said, “I don’t work and stuff,” and “money is tight for me.” When he was told he would be paid for his mileage, he responded, “But I don’t get it until after. Now I’m broke.” He said he lived in Perris, he was “low on gas big time,” he had no means of support, and his mother did not help him. When the court asked how he survived, he responded, “I’m a bum.” Arrangements were made to pick up Mr. R. to transport him to court the following morning.
After the prosecutor exercised a peremptory challenge to excuse Mr. R., the defense moved to retain Mr. R. The prosecutor explained her reasons for excusing Mr. R. She stated that although the jurors had been told not to speak to the attorneys, Mr. R. nonetheless approached her and asked, “‘Does it make a difference if I told you I didn’t have a driver’s license?’” The prosecutor had reported the contact to the court, and Mr. R. had been questioned in chambers, where he had mentioned that although he did not have a driver’s license, “he admitted to driving to court that day, which means he is not law[]abiding.” Mr. R. had also told the court clerk that “there was a gas issue” and also that he, Mr. R., was trying to get out of jury duty.
The prosecutor stated that Mr. R.’s responses had been “soft and reluctant,” and even defense counsel could not hear him. The prosecutor noted that Mr. R. had referred to himself as a “bum,” and although he had described himself as a student, he had also said he was not in session right now. She pointed to Mr. R.’s limited life experience as a student and noted she had excused another student for the same reason. The prosecutor observed that Mr. R. wore diamond earrings shaped like dollar signs in both ears, and Mr. R. did not fit within the conservative profile that a prosecutor normally selects. Finally, the prosecutor stated that the financial hardship for Mr. R. would be great.
Initially, the trial court rejected the prosecutor’s reasons for excusing Mr. R., stating that the trial court had not construed Mr. R.’s statements in chambers as having been an admission he had driven to court without a license. The trial court stated, “I don’t see any reason there that he was dishonest with us in any way at all.” However, the court allowed further argument, and the prosecutor reemphasized Mr. R.’s manner of dress and lack of life experience. The trial court then accepted the prosecutor’s explanation as valid and excused Mr. R.
The trial court had asked Mr. R., “You drove here this morning?” Mr. R. responded, “Yes.”
3. Analysis
Under the federal and California Constitutions, the prosecutor may not use peremptory challenges to remove prospective jurors on the basis of group bias. (U.S. Const., 14th Amend.; Cal. Const., art. I, § 16; Johnson v. California, supra, 545 U.S. 162, 168; People v. Bell, supra, 40 Cal.4th at p. 596.) Such a practice violates the criminal defendant’s rights to equal protection and to a trial by jury drawn from a representative cross-section of the community. (People v. Bell, supra, at p. 596.) When a party believes an opponent is using peremptory challenges for a discriminatory purpose, the party must make a timely objection and must make a prima facie showing that jurors are being excluded on the basis of group bias. (People v. Fuentes (1991) 54 Cal.3d 707, 713-714.)
To establish a prima facie case, the moving party should (1) make as complete a record as possible; (2) establish that the persons excluded are members of a cognizable group, and (3) raise an inference that the persons were excluded because of their group association. (Johnson v. California, supra, 545 U.S. at p. 168.) Once a prima facie case has been made, the burden shifts to the opposing party to come forward with a group-neutral explanation for the exercise of the peremptory challenges. The trial court must then determine whether the moving party has met its burden of proving purposeful discrimination. (Ibid.)
“A Batson challenge does not call for a mere exercise in thinking up any rational basis.” (Miller-El v. Dretke (2005) 545 U.S. 231, 252 (Miller-El).) “[I]mplausible or fantastic justifications may (and probably will) be found to be pretexts for purposeful discrimination.” (Purkett v. Elem (1995) 514 U.S.765, 768-769 [holding that the prosecutor’s explanation that he struck a prospective juror because “he had long, unkempt hair, a mustache, and a beard,” was race neutral and nondiscriminatory].)
Courts have regularly acknowledged that prospective jurors’ negative experiences with the judicial system (People v. Douglas (1995) 36 Cal.App.4th 1681, 1690), hostility toward the prosecution expressed through body language (People v. Phillips (2007) 147 Cal.App.4th 810, 819), and having family members who have served time in prison (People v. Gutierrez (2002) 28 Cal.4th 1083, 1124-1125) are valid reasons for exercising peremptory challenges. The prosecutor stated all those reasons for excusing Ms. L. The trial court stated its own observations of Ms. L.’s demeanor, pointing out that Ms. L. had been visibly upset when discussing her niece’s experience with the police. (See Snyder v. Louisiana (2008) __ U.S. __ [128 S.Ct. 1208, 1209, 2008 U.S. Lexis 2708] [stating that the trial court’s evaluation of the credibility of the prosecutor’s reasons for striking a juror is entitled to great deference, especially when the trial court “has made a finding that an attorney credibly relied on demeanor in exercising a strike”].) We conclude the trial court did not err in denying defendant’s Wheeler/Batson motion as to Ms. L.
Courts have also recognized lack of life experience (People v. Perez (1994) 29 Cal.App.4th 1313, 1328) and a manner of dress that suggests an unconventional lifestyle (People v. Wheeler, supra, 22 Cal.3d at p. 275) as legitimate reasons for excusing a juror. The prosecutor stated those reasons for excusing Mr. R. The prosecutor also noted that she had excused another prospective juror who was a student on the basis of lack of life experience. Thus, the record indicates the prosecutor was consistent in her use of peremptory challenges regardless of race. We find no error in the trial court’s denial of defendant’s Batson motion as to Mr. R.
4. Consideration of Prior Mistrial
Defendant argues that the trial court failed to take into account that a mistrial had earlier been granted when the same prosecutor excused an African-American juror, and defendant suggests that the prosecutor’s actions in the first trial demonstrate that her reasons in the second trial were “transparent.”
In considering a Wheeler/Batson objection, “all of the circumstances that bear upon the issue of racial animosity must be consulted.” (Snyder v. Louisiana, supra, __ U.S. __ [128 S.Ct. at p. 1208].) However, we do not interpret Snyder v. Louisiana as meaning that once a mistrial has been granted the trial court should not accept the prosecutor’s reasons for striking jurors in a subsequent proceeding.
The trial court was aware of the previous mistrial; the trial court stated, “For the record, I wasn’t part of any previous case. I realize there was a mistrial. I’m judging these facts based on this case and what’s happening in this trial, not on what’s happened in another trial.” As discussed above, the trial court properly found that the prosecutor had expressed nonracial reasons for excusing Ms. L. and Mr. R. in the present trial.
5. Comparative Analysis
Finally, citing Miller-El, supra, 545 U.S. at p. 241, defendant argues that this court should employ comparative analysis — in other words, to compare Ms. L. and Mr. R. to jurors who were not excused — to determine whether the prosecutor’s expressed reasons were pretextual. Defendant asserts that “[t]he factual basis for a comparative analysis is contained in the voir dire and is required even when not requested or attempted in the state court.”
The California Supreme Court has not decided whether, in light of the decision in Miller-El, supra, 545 U.S. 231, a defendant on direct appeal may insist that an appellate court consider a comparative juror analysis for the first time on appeal. In People v. Stevens (2007) 41 Cal.4th 182, 196, the court noted that in People v. Johnson (1989) 47 Cal.3d 1194, 1220-1221, it had “disapproved of such comparative analysis for the first time on appeal.” The court continued, “To the extent Johnson may have been called into question by [Miller-El], we perform a comparative juror analysis to facilitate this review. . . . We do not hereby express an opinion that such a comparison is compelled.”
Assuming that a comparative analysis is required, defendant in his brief has not presented any argument with citations to the record comparing Ms. L. and Mr. R. with other jurors. Nothing in Miller-El, even broadly construed, indicates an appellate court is compelled to engage in such an analysis when the defendant has failed to comply with normal appellate briefing rules that require citations to the record to support the arguments raised. (See, e.g., Alhusainy v. Superior Court (2006) 143 Cal.App.4th 385, 395.) We decline to compare jurors for defendant. (See People v. Buchanan (2006) 143 Cal.App.4th 139, 149, fn. 1 [“Defendant does not attempt a comparative analysis on appeal; we therefore need not resolve this question”].)
IV. DISPOSITION
The judgment is affirmed.
We concur: RICHLI J., KING J.