Opinion
NOT TO BE PUBLISHED
APPEAL from the judgment of the Superior Court of Los Angeles County No. TA088749. Paul A. Bacigalupo, Judge.
David McNeil Morse, 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, Assistant Attorney General, Victoria B. Wilson and Yun K. Lee, Deputy Attorneys General, for Plaintiff and Respondent.
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
INTRODUCTION
A jury convicted appellant Troy Lonzell Jelks of multiple counts of robbery and related offenses and found true personal firearm and criminal street gang allegations. The trial court imposed a total prison sentence of 129 years eight months. Appellant’s sole claim on appeal is that the judgment must be reversed because the trial court erroneously denied his Wheeler motion. We affirm.
People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler).
FACTUAL AND PROCEDURAL BACKGROUND
During voir dire, counsel questioned Juror No. 6390, a single male from Cerritos who worked as a security guard. When he was 11 to 13 years old, he was caught shoplifting and received probation. When the juror was 14 years old and living in Jordan Downs in Watts, he saw a crowd of people beat his mother after his mother’s boyfriend had shot someone. The crowd also “turned on” the juror. Recently, the juror was challenged by a Hispanic man who appeared to be a gang member, but nothing occurred.
Defense counsel asked Juror No. 6390 if he was aligned more with law enforcement due to his employment as a security guard. The juror said he was not and that he had not “taken the oath to uphold the law. And... basically... I do not align myself with law enforcement.” Defense counsel further asked, “Is there anybody here who like one of the jurors said, you know what, if I’m the only one I must be wrong and throw in the towel and vote with the higher number?” The juror replied, “Well, I tend to do that myself personally. But if it’s – if I have an opinion I feel real strongly about and aware about, then I will not deviate with it. I will stay with my opinion no matter what.”
The prosecutor asked Juror No. 6390 about growing up in Jordan Downs. The juror responded by saying that some of his family members, namely his younger brother and older sister, associated with gang members outside of their home but that he never did. The younger brother went to jail “many times” for drinking, smoking marijuana, and getting into fights. The juror no longer maintained contact with his younger brother, who lives out of state. The prosecutor then used a peremptory challenge to excuse Juror No. 6390.
Appellant’s counsel brought a Wheeler motion, arguing that four of the six peremptories exercised by the prosecution had been against African-Americans, appellant was African-American, and the jury panel did not have many African-Americans. The court agreed with counsel’s characterization of “the racial identity of those persons who have been excused” and found counsel had made a prima facie case.
The prosecutor noted that three of the 12 seated jurors were African-American and that another juror “in a group of five up front” was also African-American. The prosecutor then explained:
“What I found as somewhat interesting was his reluctance. He mentioned – he didn’t mention the location that he worked at, but he said it was quite important. And also, I found that he talked quite a lot. He was giving far more information than some of the questions we’re asking. [¶] None the less [sic] he mentioned he grew up in Jordan Downs but didn’t witness any incidents [that] happened and stayed inside. And only upon questioning did he mention that his brother may have had some problem with the law, which never came up during the initial inquiry. [¶] He also stated that he, although he was a security guard, he hasn’t taken the oath to uphold the law. And I just found that a little out of the ordinary that somebody would use that specific language. [¶] And he also mentioned that in certain situations he would tend to roll-over. That was his personality if faced with a decision of 11 to 1.”
The trial court denied the motion, finding the prosecutor had met the burden of proof by providing satisfactory race-neutral explanations for use of his peremptory challenges.
DISCUSSION
Appellant contends the trial court erred in denying his Wheeler motion because the prosecutor’s explanations were not race-neutral but rather were sham excuses for exercising a peremptory challenge of Juror No. 6390 on the improper basis of race. We disagree.
Applicable Law
The exercise of peremptory challenges to eliminate prospective jurors because of their race violates the federal and California Constitutions. (People v. Williams (1997) 16 Cal.4th 635, 663 (Williams); see also Wheeler, supra, 22 Cal.3d at pp. 276-277.)
“The United States Supreme Court recently reiterated the applicable legal standards. ‘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.]” (People v. Gray (2005) 37 Cal.4th 168, 186.)
The prosecutor’s explanation need not arise to the level justifying an exercise of a challenge for cause. (Williams, supra, 16 Cal.4th at p. 664.) “[T]he law recognizes that a peremptory challenge may be predicated on a broad spectrum of evidence suggestive of juror partiality. The evidence may range from the obviously serious to the apparently trivial, from the virtually certain to the highly speculative. [¶] For example, a prosecutor may fear bias on the part of one juror because he has a record of prior arrests or has complained of police harassment, and on the part of another simply because his clothes or hair length suggest an unconventional lifestyle.” (Wheeler, supra, 22 Cal.3d at p. 275.)
Adequate justification by the prosecutor may be no more than a “hunch” about the prospective juror, so long as it shows that the peremptory challenges were exercised for reasons other than impermissible group bias. (Williams, supra, 16 Cal.4th at p. 664; see also People v. Stanley (2006) 39 Cal.4th 913, 936 [“ ‘A reason that makes no sense is nonetheless “sincere and legitimate” as long as it does not deny equal protection’ ”]; People v. Box (2000) 23 Cal.4th 1153, 1186, fn. 6 [even “arbitrary” exclusion is permissible, so long as the reasons are not based on impermissible group bias]; accord, People v. Turner (1994) 8 Cal.4th 137, 171.)
“Because Wheeler motions call upon trial judges’ personal observation, 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. [Citation.]” (People v. Howard (1992) 1 Cal.4th 1132, 1155.) Only if “the record as a whole shows purposeful discrimination,” despite the neutral explanations given, will we reverse. (People v. Silva (2001) 25 Cal.4th 345, 384.)
The Wheeler Motion Was Properly Denied
The record in this case amply supports the prosecutor’s race-neutral grounds for his challenge to Juror No. 6390. For example, the prosecutor explained that this juror talked a lot, was not forthcoming at times, and offered more information than he was asked at other times. The record shows that in response to the court’s questions about his work, the juror added he had never served on a jury and that he had witnessed his mother being beaten by neighbors. Also, as appellant acknowledges, although the juror was asked whether he “or a family member” had “ever been arrested or convicted of a crime,” he did not mention that his younger brother “went to jail many times” until the prosecutor later asked about his siblings’ involvement with gangs. These responses support the prosecutor’s race-neutral concern that this juror had not always been completely forthright in his answers and therefore may not have been an optimal juror.
In addition, the prosecutor explained his concern that Juror No. 6390 tended to “roll-over” and go with the majority rather than stand alone on principle. The record supports this race-neutral concern because the juror said that it was his personal tendency to “throw in the towel and vote with the higher number.” Appellant argues that if this was truly the prosecutor’s concern, he had an obligation to question the juror further in order to resolve the “seeming ambiguity” between this statement and the juror’s subsequent statement that he would not deviate from an opinion if he felt “real strongly about” it. Contrary to appellant’s argument, the prosecutor had no such obligation and was entitled to make his peremptory decision based upon the juror’s initial statement. (See People v. Martin (1998) 64 Cal.App.4th 378, 384 [a prosecutor need not show actual bias for a peremptory challenge].)
In sum, the prosecutor’s stated reasons for exercising his peremptory challenge to Juror No. 6390 were neither contradicted by the record nor demonstrative of purposeful discrimination. Accordingly, the trial court properly denied appellant’s Wheeler motion.
Although appellant does not argue on appeal that the peremptory strikes against the three other African-American jurors were pretextual, we note the prosecutor justified those peremptory strikes with race-neutral reasons: Juror No. 4638 was removed because she was young, divorced, and a teacher, which to the prosecutor were “marks against a potential juror.” Juror No. 2024 had served before on a jury from which he had been removed by the court while the jury was deliberating. Finally, Juror No. 9199 was audibly laughing “quite often” to remarks made by counsel, and also laughed out loud when other jurors noted their concern regarding the many gang enhancement allegations in this case.
DISPOSITION
The judgment is affirmed.
WE CONCUR: RUBIN, Acting P.J., FLIER, J.