Opinion
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. No. 050801654
Lambden, J.
A jury found defendant guilty of one count of committing an aggravated sexual assault of a child under the age of 14 and 10 or more years younger than defendant (Pen. Code, § 269, subd. (a)(4)), three counts of perpetrating a lewd act on a child (§ 288, subd. (a)), and one count of performing a forcible lewd act upon a child (§ 288, subd. (b)(1)). Defendant appeals and contends the judgment must be reversed because the trial court should have granted his motion pursuant to People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler) and Batson v. Kentucky (1986) 476 U.S. 79 (Batson). Defendant maintains that the evidence in the record did not support the prosecutor’s reason for striking the only Hispanic male on the panel. We conclude that substantial evidence supported the prosecutor’s race-neutral reason for excusing the juror. Thus, we affirm the judgment.
All unspecified code sections refer to the Penal Code.
BACKGROUND
On February 15, 2008, an information was filed charging defendant with one count of aggravated sexual assault (rape) of a child under the age of 14 and 10 or more years younger than defendant (§ 269, subd. (a)(1)), one count of committing an aggravated sexual assault (oral copulation) of a child under the age of 14 and 10 or more years younger than defendant (§ 269, subd. (a)(4)), three counts of perpetrating a lewd act on a child (§ 288, subd. (a)), and one count of performing a forcible lewd act upon a child (§ 288, subd. (b)(1)). The information alleged substantial sexual conduct pursuant to section 1203.066, subdivision (a)(8) with respect to the three counts of committing a lewd act on a child.
The matter proceeded to trial and, prior to being questioned in court, the prospective jurors completed a questionnaire. The only Hispanic juror on the panel was S.M. Juror S.M. indicated on his questionnaire that he had been a banquet waiter for 18 years. On the form that had military service listed and a space to fill-in the person’s branch, specialty, and highest rank, S.M. marked the box indicating that he did not have military service. S.M. marked “yes” or “no” in response to each question. He wrote a written explanation for only the following question: “Do you have any feelings about the subject of sexual assault that might influence your judgment about sexual assault allegations?” After marking “yes, ” he wrote: “I think i should be penalize strong [sic].”
It appears that the second “i” in S.M.’s response was not capitalized.
After the jurors competed the questionnaires the court conducted voir dire. S.M. told the court that he could be objective. The court asked S.M. whether “there [is] any information that would be relevant to your service that we have not asked you[.]” S.M. replied, “Yes, well, I didn’t mark that my neighbor is a police officer.” S.M. continued, “He is just a neighbor, I am not close friends with him or anything.” When asked “what department he’s with[, ]” S.M. responded, the “San Francisco Police.” The court concluded: “Okay. So it doesn’t sound like it would affect you as a juror in this case?” S.M. said, “No.”
Defense counsel asked whether any of the prospective jurors had “any kind of training in law enforcement like in some fraud investigators [sic] or working for an insurance company who do investigations, working for a bank or anything where you do investigations?” S.M. indicated that he had military service. When defense counsel asked what kind of work he did in the military service, S.M. answered, “I just was a soldier in my country, military service.” When asked whether he investigated crimes, he responded, “No.”
Defense counsel asked S.M. whether he spoke Spanish and he responded, “Yes.” Defense counsel told S.M.: “One of the things that had been asked earlier is that––that your people translating [sic]. And you may not disagree and you might not agree with how the translation occurs. You may not even hear it, but if you were to hear something that in your mind was inappropriate rather than accept your version of what the translation is, do you think you could go to the Judge and say I think that you need to know I don’t agree with the translation and maybe there may be some concern, do you think you can do that? S.M. replied that he would. Defense counsel asked: “Then you would accept what the court ruled is the interpretation, the correct interpretation?” S.M. said, “Yes.”
After the prosecutor and defense counsel each exercised five peremptory challenges, the prosecutor announced that he was satisfied with the jury. Defense counsel then exercised a sixth peremptory challenge, and the prosecutor exercised his sixth peremptory challenge to S.M. Defendant cited Wheeler and Batson and objected to the prosecutor’s striking of S.M.
Outside the presence of the jurors, the trial court addressed defendant’s Wheeler/Batson motion. Defendant’s counsel stated that S.M. “is a Latino male, [and] my client is a Latino male. [¶] I am very concerned that [S.M] was eliminated from the panel based on the fact that he would be the only Hispanic male who was on the panel and that it would deprive [defendant] of a fair trial.”
The prosecutor asserted that he did not know if S.M. were the only Hispanic on the panel. He added: “Assuming he is Hispanic [based on his surname], ” he had “passed on the man the time before[;] I was willing to let him sit on the jury, but as a further reflection as the defense continued kicking people it occurred to me as I was looking at his questionnaire that his command of English isn’t that good as demonstrated by his written errors. So the only thing he writes, and it could be a Freudian slip, I’m not going to go there, but when asked about that judgment of sexual assault he said[, ] ‘I think I should be penalized strong.’ ”
The prosecutor continued: “I don’t know if that was a––well, I don’t know how he comes to that statement, but it’s the only thing he writes. The sentence is not that well structured. He doesn’t seem comfortable to me in English to the point he is a waiter for––a banquet waiter.... [¶] And so I don’t know that his command––it is just my judgment that his command of English is not that strong. I just don’t think he had a strong enough command of English was my problem.”
Defense counsel answered: “Your Honor, I find it curious that a man who specifically states that he speaks Spanish, that he is from another country, [the prosecutor] asks him absolutely no questions about his command of the English language, that he is now kicked off, I would say, because he’s––he is somebody who might be a fair member––fair and impartial member of the community that includes somebody like [defendant]. Somebody who is––who is Spanish speaking. [¶] And I don’t know of any case where it says that a jury is supposed to be made up of people who are not waiters. [¶] That is something that––that traditionally a Latino male might have, and I think that this is basically all about the fact that he might relate to [defendant] in a way that he could listen openly to the... to the witnesses. [¶] Remember, the witnesses are Latino, also. And so my concern is that that is the only reason. The fact that he passed at one point he was taking a chance that I might kick somebody off. That––that should not be anything that is considered. [¶] There are numerous people in this questionnaire who have spelled incorrectly.”
The prosecutor noted the following: “[W]e do have a Spanish speaker, in fact, there is a Spanish translator. I would hope that he doesn’t let his Spanish come into things.... [¶] It would be nice for people to listen to the victim speak in her native language except then, and she made it clear to him that he couldn’t, he had to accept what the interpretation was and not what he heard and would have to tell the court. [¶] I’m not sure he entirely grasps that concept. I don’t think his English was that well. That is just a judgment I make. I mean, I was willing to take him, I look back, I see what I have got in the pool, I have no idea how many Hispanics are in this room, the room is full.”
Defense counsel clarified that she could not identify any other seated juror as being Latino.
The court stated that the record should be clear that “defendant is Hispanic heritage.” The court added that it believed it was “indisputable that the juror about whom we are discussing... is Hispanic. He did say that he speaks Spanish and his name would suggest he is Hispanic and his appearance would suggest he is Hispanic and he does have an accent.” The court found that a person’s grasp of the English language was a valid race neutral reason for striking a juror. The court also accepted the prosecutor’s reason for striking the juror and noted that the questionnaire supported the prosecutor’s statement as it showed the juror’s “limitations on his ability to write the English language....” The court stated that the juror’s responses on his questionnaire provided “some evidence that he has limitations on his ability to speak and comprehend English.” The court therefore denied defendant’s Wheeler/Batson motion.
The case then proceeded to trial. At trial, the evidence showed that, in December 2005, defendant’s cousin (mother) and her two daughters came to live in the household that included defendant. On January 7, 2006, when mother accidentally touched her four-year-old daughter’s chest while tickling her on the bed, her daughter told her she was acting like her uncle. She repeated this the next day when her mother tickled her again.
The facts of the underlying case are not relevant to the issue raised on appeal and therefore they are just briefly summarized.
In January 2006, the four-year-old girl mentioned to her mother that defendant, who was in his early twenties, played with her and touched her; she pointed to her vagina. She told her mother that defendant tied her to the bed with neckties with her arms and legs open and put his handkerchief in her mouth. She reported that he rubbed himself until a white “oily” substance came out of the “big finger” that he had between his legs and spilled into the bathroom sink, and told her to touch the “finger with hair on it.” She also informed her mother that defendant had put his finger in her vagina. She said that defendant did not have his pants on when they were playing a game, and she was not wearing underwear. She also related that defendant wanted her to “kiss” the hairy finger.
On January 10, 2006, mother reported her daughter’s statements to the police, and the police interviewed the four-year-old girl. The girl told the police about several incidents within the prior weeks; mother stated that she was at work during those times and that defendant had access to her daughter. A doctor’s exam the following day indicated that she had not been penetrated.
The police interviewed defendant; he admitted that he touched the girl on two occasions. He also admitted tying her to a bed with neckties. He denied placing his penis in her mouth or penetrating her.
The trial began in April 2008, when the victim was six years old. At trial, the child victim testified that defendant had tied her up but had not touched her “privates” while she was tied. She did not remember telling anyone “the things [defendant] had done to her.” The jury viewed a videotape of an interview conducted on January 11, 2006, at the Child Interview Center. The child victim indicated that defendant had kissed her on her vagina and had made her put her mouth on his penis on four different days.
The jury found defendant guilty of all the counts except count one, aggravated sexual assault (rape) of a child under 14 who was more than 10 years younger than defendant; the court declared a mistrial on this count. In addition to finding defendant guilty on counts two through six, the jury found the accompanying enhancement allegations true. Subsequently, the court sentenced defendant to a total prison term of 15 years to life.
Defendant filed a timely notice of appeal. Subsequently, we requested supplemental briefing by the parties to address the effect of the holding in the recently decided Supreme Court case of People v. Taylor (2010) 48 Cal.4th 574 on defendant’s challenge to the prosecutor’s peremptory strike of prospective Juror S.M.
DISCUSSION
I. The Standards and Procedures for Wheeler/Batson Challenges
Defendant objects to the prosecutor’s peremptory excusal of S.M., an Hispanic juror. “[T]he unconstitutional exclusion of even a single juror on improper grounds of racial or group bias requires the commencement of jury selection anew, or reversal of the judgment where such error is established on appeal.” (People v. Reynoso (2003) 31 Cal.4th 903, 927, fn. 8.) “[T]he ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike.” (Purkett v. Elem (1995) 514 U.S. 765, 768.)
“The purpose of peremptory challenges is to allow a party to exclude prospective jurors who the party believes may be consciously or unconsciously biased against him or her.” (People v. Jackson (1992) 10 Cal.App.4th 13, 17-18.) Peremptory challenges may properly be used to remove jurors believed to entertain specific bias, i.e., bias regarding the particular case on trial or the parties or witnesses thereto. (Wheeler, supra, 22 Cal.3d at p. 274.) However, “ ‘[a] prosecutor’s use of peremptory challenges to strike prospective jurors on the basis of group bias-that is, bias against “members of an identifiable group distinguished on racial, religious, ethnic, or similar grounds”-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. [Citations.]’ [Citation.]” (People v. Bell (2007) 40 Cal.4th 582, 596; see Batson, supra, 476 U.S. at pp. 88-89; Wheeler, supra, 22 Cal.3d at pp. 276-277.)
The standards a trial court uses when a defendant challenges the prosecutor’s peremptory strike are as follows: “ ‘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.” ’ ” (People v. Avila (2006) 38 Cal.4th 491, 541.) “Once a prosecutor has offered a race-neutral explanation for the peremptory challenges and the trial court has ruled on the ultimate question of intentional discrimination, the preliminary issue of whether the defendant had made a prima facie showing becomes moot.” (Hernandez v. New York (1991) 500 U.S. 352, 359 (Hernandez).) “However, a trial court’s request that the prosecutor provide reasons for his or her exercise of a peremptory challenge is not an implicit finding the defendant has established a prima facie case, and does not moot the issue, in every instance. ‘In determining whether to infer a trial court’s finding of a prima facie case under Wheeler, we look to the whole record, examining the court’s remarks in context.’ ” (People v. Taylor, supra, 48 Cal.4th at p. 612.)
Once the trial court expressly or implicitly finds that 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.]’ ” (People v. Avila, supra, 38 Cal.4th at p. 541, quoting Johnson v. California (2005) 545 U.S. 162, 168.) At step three of the Batson/Wheeler analysis, the trial court must decide whether the opponent of the peremptory strike has proved purposeful racial discrimination by a preponderance of the evidence. (Purkett v. Elem, supra, 514 U.S. at p. 767; People v. Hutchins (2007) 147 Cal.App.4th 992, 997-998.) At this point, the persuasiveness of the proffered justification becomes relevant (Johnson v. California, supra, 545 U.S. at p. 171), and an implausible or fantastic justification will often be found to be pretext for purposeful discrimination. (Purkett v. Elem, supra, at p. 768.) “In [this] process, 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. Fuentes (1991) 54 Cal.3d 707, 720.)
However, a prosecutor is presumed to use his or her peremptory challenges in a constitutional manner (People v. Alvarez (1996) 14 Cal.4th 155, 193; Wheeler, supra, 22 Cal.3d at p. 278), and the justification proffered for the particular excusal “need not support a challenge for cause, and even a ‘trivial’ reason, if genuine and neutral, will suffice. [Citations.]” (People v. Arias (1996) 13 Cal.4th 92, 136.) The trial court must then satisfy itself that the explanation is genuine. (People v. Hall (1983) 35 Cal.3d 161, 168.) “What is required are reasonably specific and neutral explanations that are related to the particular case being tried.” (People v. Johnson (1989) 47 Cal.3d 1194, 1218.) “When a trial court has made a sincere and reasoned effort to evaluate each of the stated reasons for a challenge to a particular juror, we accord great deference to its ruling, reviewing it under the substantial evidence standard. [Citations.]” (People v. Jurado (2006) 38 Cal.4th 72, 104-105.) Deference does not, of course, “imply abandonment or abdication of judicial review.” (Miller-El v. Cockrell (2003) 537 U.S. 322, 340.) “[R]ace-neutral reasons for peremptory challenges often invoke a juror’s demeanor (e.g., nervousness, inattention), making the trial court’s first-hand observations of even greater importance.” (Snyder v. Louisiana (2008) 552 U.S. 472, 481-485 [reversed and held that prosecutor’s proffered reasons for striking an African-American prospective juror were “unconvincing[, ]” “highly speculative[, ]” “suspicious[, ]” “implausib[le]” and “pretextual”].)
“ ‘When the prosecutor’s stated reasons are both inherently plausible and supported by the record, the trial court need not question the prosecutor or make detailed findings. But when the prosecutor’s stated reasons are either unsupported by the record, inherently implausible, or both, more is required of the trial court than a global finding that the reasons appear sufficient.’ ” (People v. Stevens (2007) 41 Cal.4th 182, 193.)
II. Applying the Wheeler/Batson Test to the Facts of This Case
A. Prima Facie Showing
In the present case, the trial court found that both defendant and S.M. were Hispanic. The court did not expressly rule on defendant’s making a prima facie case. We asked the parties to provide supplemental briefing on the application of People v. Taylor, supra, 48 Cal.4th 574 to the facts of this case.
The Supreme Court in Taylor, supra, 48 Cal.4th 574 held that the trial court’s asking the prosecutor to state race-neutral reasons for excusing a juror was not in every instance an “implicit finding” that the defendant had established a prima facie case. (Id. at p. 612.) Rather, the appellate court had to look at the whole record, examining the trial court’s remarks in context, to determine whether to infer a trial court’s finding of a prima facie case. (Ibid.) In the case before it, the Supreme Court concluded there had not been an implicit finding of a prima facie case because the trial court’s statement to the prosecutor “strongly” suggested a finding that defendant had not made a prima facie case and the trial court failed to make any factual findings regarding the credibility of any of the prosecutor’s stated reasons for the peremptory challenge. (Id. at pp. 612-613.)
In contrast to the situation in People v. Taylor, supra, 48 Cal.4th 574, the trial court in the present case did not summarily deny defendant’s Wheeler/Batson motion. Instead, the trial court analyzed whether the prosecutor had proffered a race-neutral reason for challenging the juror and whether that explanation was genuine. Thus, in this situation, both parties agree that “the preliminary issue of whether the defendant had made a prima facie showing [became] moot.” (Hernandez, supra, 500 U.S. at p. 359.)
Defendant contends that the record supports a prima facie showing. The People dispute that the record supports a prima facie showing, but agree that the issue is moot under Hernandez, supra, 500 U.S. at page 359.
We agree that the trial court in the present case, unlike the trial court in Taylor, made detailed factual findings regarding the credibility of the prosecutor’s stated reasons for peremptorily challenging prospective Juror S.M. We therefore consider the issue of the sufficiency of the prima facie showing to be moot.
B. Evidence in Support of a Finding of No Purposeful Discrimination
The prosecutor stated that he was striking S.M. from the jury because he believed S.M.’s English was deficient and that S.M. might not understand that he was to consider only the official English translation of the witnesses’ testimony rather than rely on his own interpretation of the Spanish-speaking witnesses. Defendant agrees that the prosecutor’s stated reasons for striking S.M. might be permissible under certain circumstances, but maintains that the proffered reasons in this particular case were implausible and not supported by the record. Accordingly, we examine the record to determine whether substantial evidence supports the trial court’s findings (People v. Bonilla (2007) 41 Cal.4th 313, 341), and whether the trial court understood its obligation to scrutinize the explanation given for the exercise of peremptory challenges and made “ ‘a sincere and reasoned attempt to evaluate... explanation in light of the circumstances of the case as then known....’ ” (People v. Johnson, supra, 47 Cal.3d at p. 1216.)
Not speaking English well is a permissible, neutral, and credible reason for a peremptory challenge. (People v. Jurado, supra, 38 Cal.4th at p. 107 [excused juror was opposed to death penalty and the questionnaire indicated that “she had been born in the Philippines, thereby suggesting that English might not be her first language”]; People v. Ayala (2000) 24 Cal.4th 243, 266 [record supported the view that the prosecutor did not engage in racial or ethnic discrimination in excusing a juror who struggled with English and did not understand the proceedings]; People v. Sims (1993) 5 Cal.4th 405, 431 [stricken juror had “some difficulty with the English language”], overruled on another ground in People v. Storm (2002) 28 Cal.4th 1007, 1031-1032.) Here, the record establishes that S.M. spoke Spanish and the court observed that he spoke English with an accent.
With regard to the juror questionnaire, S.M. marked “yes” or “no” and wrote an explanation only to one question. S.M. responded, “Yes, ” to the following question: “Do you have any feelings about the subject of sexual assault that might influence your judgment about sexual assault allegations?” He wrote, “I think i should be penalize strong [sic].” The prosecutor appears to have interpreted this sentence to mean that S.M. was referring to himself when using the second “i” in the sentence. This interpretation makes the sentence somewhat nonsensical, and supports a conclusion that S.M. did not understand English. Defendant construes the “i” as being a typographical mistake and claims S.M. intended to write “it.” Nothing in this record makes it clear whether defendant was referring to himself, had intended to write “it, ” or had intended something else when writing his response to the question.
Although the questionnaire by itself may have been insufficient to show that the prosecutor had race-neutral reasons for striking S.M., the record contains other evidence bolstering the prosecutor’s claims of good faith and lack of motivation to discriminate. Initially, the prosecutor did not challenge S.M. After both the prosecutor and defense counsel had each exercised five peremptory challenges, the prosecutor announced he was satisfied with the jury. It was only after defense counsel excused a sixth prospective juror that the prosecutor peremptorily challenged S.M. Thus the prosecutor’s original willingness to have S.M. on the jury indicates that the prosecutor was not particularly anxious to remove S.M. from the jury.
Also supportive of an inference that the prosecutor did not excuse S.M. because of race is the fact that the victim, like the defendant, was Hispanic. (People v. Kelly (2007) 42 Cal.4th 763, 779 [it is when the victim is a member of the group to which the majority of the remaining jurors belong that there may be an inference of discrimination]; see also People v. Ortega (1984) 156 Cal.App.3d 63, 70.) This case is not like the usual Wheeler case, where the juror being excused from the jury is of the same race as the defendant and a race different from that of the victim. (See Ortega, at pp. 70-71.) Here, the child-victim was Hispanic, and the prosecutor had little reason to exclude jurors of Hispanic origin.
The record is not completely barren of any evidence to support the prosecutor’s concern that S.M. did not have a sufficient command of the English language. The trial court did carry out a limited exchange with S.M. and was in a position to evaluate S.M.’s command of the English language. “Ruling on Wheeler motions ‘ “ ‘requires trial judges to make difficult and often close judgments. They are in a good position to make such determinations, however, on the basis of their knowledge of local conditions and of local prosecutors.’ [Citation.] They are also well situated to bring to bear on this question their powers of observation, their understanding of trial techniques, and their broad judicial experience. We are confident of their ability to distinguish a true case of group discrimination by peremptory challenges from a spurious claim....” ’ ” (People v. Buckley (1997) 53 Cal.App.4th 658, 664-665.) S.M. marked, “No, ” with reference to a question on the questionnaire referring to having any military service. Yet, during voir dire, he told defense counsel that he had served in the military. His answers to questions during voir dire indicated that he may not have fully understood the question. When asked if he had investigated crimes, S.M. responded, “I just was a soldier in my country, military service.” Indeed, it was apparent to defense counsel from S.M.’s interaction with the court that English was not his native language as she questioned him about his ability to accept the court translator’s English interpretation. The court was in a position to determine whether S.M. was having difficulty responding to the questions.
Another consideration in this case is that Spanish translators were necessary for key witnesses at trial. It is misconduct for a juror to rely on his or her own translation instead of the interpreter’s translation. (People v. Cabrera (1991) 230 Cal.App.3d 300, 303-304.) However, the United States Supreme Court has made it clear that the prosecutor cannot rely on language ability without some more evidence that the juror would not defer to the official translation of the Spanish-language testimony. (Hernandez, supra, 500 U.S. at p. 361.) Here, the prosecutor did not question S.M. and S.M. did tell defense counsel that he would defer to the court’s ruling on the translation. The prosecutor, however, expressed concern that S.M. did not “entirely grasp[]” the “concept” that he had to defer to the court’s ruling on the translation. We agree with the People that concerns about a prospective juror’s ability to speak English might be heightened when the witnesses are testifying in the prospective juror’s native language. In such a situation, a juror may be more likely to rely on the testimony that can be easily understood rather than struggle to comprehend the difficult to understand interpretation of that witness’s testimony.
C. Defendant’s Argument
Defendant contends that the trial court failed to perform its duty to perform a “sincere and reasoned attempt to evaluate the prosecutor’s explanation in light of the circumstances of the case as then known, [the court’s] knowledge of trial techniques, and [the court’s] observations of the manner in which the prosecutor has examined members of the venire and has exercised challenges for cause or peremptorily....” (See People v. Hall (1983) 35 Cal.3d 161, 167-168.) He maintains that the prosecutor’s reason was not genuine but pretextual and that the record does not provide substantial support for the prosecutor’s reasons.
Defendant argues that the prosecutor’s assertions that S.M. did not understand English well enough and that he might not follow the court’s rulings regarding translated testimony were “both unsupported and implausible.” He maintains that the court failed to consider that S.M. stated under oath that he would be able to abide by the court’s ruling even if he believed the translation was incorrect. Defendant points out that a challenge based on the juror’s refusal to accept the translated versions of testimony must be based on concrete evidence (People v. Gonzales (2008)165 Cal.App.4th 620). Such evidence, according to defendant, is absent from the present record. He maintains that the present case is similar to the situation in Gonzalez, where the appellate court reversed the lower court’s denial of the defendant’s Wheeler motion because the trial court failed to probe the explanation for challenging the Hispanic jurors and the explanation was not supported by the record. (Gonzales, supra, at p. 632.)
In Gonzales, the prosecutor exercised his first four peremptory challenges to prospective jurors with Hispanic surnames. (People v. Gonzales, supra, 165 Cal.App.4th at p. 623.) The appellate court concluded that one of the stated reasons by the prosecutor for excusing one of the Hispanic prospective jurors was based on this juror’s speaking Spanish, but the record showed that the juror had not indicated any problem accepting the court interpreter’s translation of testimony given in Spanish. (Id. at p. 627.) The court observed that all four of the challenged jurors indicated as a group that they would not have a problem with accepting the interpreter’s translation of testimony given in Spanish. (Id. at p. 630.) Moreover, the prosecutor did not challenge another juror who did not have an Hispanic surname despite this juror’s indicating that she would not be able to ignore what the witness actually said and listen only to the interpretation. (Ibid.) The court stressed that the prosecutor did not challenge the Hispanic juror’s specific responses or demeanor. Further, the other reasons given by the prosecutor for excusing this Hispanic juror were substantially unsupported by the record and implausible. The prosecutor stated that he dismissed the prospective Hispanic juror because he was young and had no children or spouse. While the court noted that youth and a lack of life experience could be a valid race-neutral basis for a peremptory challenge, the record showed that the juror had a job and never stated that he was single or did not have children. (Id. at pp. 631-632.)
In the present case, S.M., like the juror in People v. Gonzales, did indicate that he would not have any problem accepting the official translation of the witnesses’ testimony. However, the prosecutor was entitled to give that response little weight if the record supported his belief that S.M. had a poor command of English and was therefore more likely to rely on the witnesses’ testimony rather than the official translation. Here, the prosecutor pointed to S.M.’s particular response to the questionnaire to support his concern with his ability to understand English. Further, the court did ask S.M. questions and the court agreed that S.M.’s ability to understand English was deficient. Further, unlike the situation in Gonzales, this was not a situation where the record established that some of the prosecutor’s stated reasons clearly had no application to the stricken prospective juror.
Defendant argues that the prosecutor did not strike other jurors who displayed problems with English. Defendant stresses that the prosecutor did not challenge Jurors No. 6 and No. 8 even though they exhibited some difficulty with the English language. He argues that comparative analysis can show that the prospective jurors’ treatment was so disparate that it warrants a finding that the prosecutor’s reasons were pretextual. (See Miller-El v. Dretke (2005) 545 U.S. 231, 236 [court should determine whether the reasons given for the prosecution’s exercise of peremptory challenges were equally applied to other jurors]; see also Lewis v. Lewis (9th Cir. 2003) 321 F.3d 824, 832-833; United States v. Alanis (9th Circ. 2003) 335 F.3d 965, 969; Ali v. Hickman (9th Cir. 2009) 571 F.3d 902, 912; McClain v. Prunty (9th Cir. 2000) 217 F.3d 1209, 1222.)
“[C]omparative juror analysis is but one form of circumstantial evidence that is relevant, but not necessarily dispositive, on the issue of intentional discrimination.” (People v. Lenix (2008) 44 Cal.4th 602, 622.) However, “comparative juror analysis on a cold appellate record has inherent limitations.” (Ibid.) “There is more to human communication than mere linguistic content.” (Ibid.)
In the present case, the answers by Juror No. 6 in the juror questionnaire contained grammatical mistakes. Juror No. 6 was not challenged by the prosecutor, and this juror wrote the following in response to the question whether she would feel sympathy to the complaining witness that would make it difficult for her to make decisions fairly and impartially in this case: “Myself is a very motional person.” When questioned whether she had feelings about the subject of sexual assault that might influence her judgment about sexual assault allegations, she responded: “I am not comfortable to discuss the Sexual Subject.” When asked what knowledge she had about sexual assault, and from where did it come, she answered: “Inappropriate touching behavior at public and from television and office conversion[.]” When asked why she might not be a fair and impartial juror, she responded: “Due to never like to discuss the sexual subject at public and dislike any of sexual behavior assault[.]”
Juror No. 6’s answers may not have been grammatically correct, but the juror’s four responses demonstrated that she understood the questions. In contrast, S.M. provided only one written response to the questions. Further, as already noted, S.M.’s answers exhibited some lack of understanding of the questions asked, as he told the court he had military service but indicated on the questionnaire that he had none.
Juror No. 8, like S.M., wrote an answer to only one question on the questionnaire. When asked for any reason why she might not be fair and impartial as a juror, she responded: “I do not understand and speak English fluently.” When the court questioned this juror, the juror said she had been speaking English for over 10 years. She said that a number of Asians worked with her on her job so she generally spoke her native language with them, but her supervisor spoke to her in English. The court stated, “My sense is that your English is pretty good just from our brief conversation.” The juror stated that she did not understand some of the words on the questionnaire; she reported that she could follow only about 50 percent of what the judge and the others jurors were saying. The court responded: “Wow. My sense is you are getting a lot more than that, just from your––your answers have been right on point.” Thus, although the juror expressed difficulty with the language, the court perceived her answers as exhibiting a good understanding of the language. In contrast, the court agreed with the prosecutor’s assessment that S.M. had difficulty with English.
Furthermore, with regard to Jurors No. 6 and No. 8, the prosecutor did not have to worry that their difficulty understanding English would result in their disregarding the official English translation. They could not rely on their own interpretation of the witnesses’ testimony because no witness was testifying in these jurors’ native language. Indeed, the prosecutor assured Juror No. 8 that the witnesses were going to speak Spanish and the English translations were “going to be slower.”
Defendant asserts that court interpreters are presumed competent (see United States v. Bailon-Santana (9th Cir. 2005) 429 F.3d 1258, 1261), and therefore it can be presumed that there would be insignificant differences between the original and translated version of the testimony. We do not agree that there is a presumption of no significant difference between the original and translated testimony. Certification simply means that the interpreter is competent and “[j]urors who consider their own translation skills superior to those of the certified interpreter are nevertheless instructed to consider only the certified translation.” (Ibid.) The law is clear that it is misconduct for a juror to rely on his or her own translation instead of the interpreter’s translation. (People v. Cabrera (1991) 230 Cal.App.3d 300, 303-304.) Indeed, courts have consistently held that language ability and a hesitancy to follow the court’s interpretation of the witness’s testimony is a valid, race-neutral reason for excluding a juror. (See, e.g., Hernandez, supra, 500 U.S. at p. 360; People v. Cardenas (2007) 155 Cal.App.4th 1468, 1472-1474.)
Defendant also argues that the record does not support a finding that S.M. had difficulty understanding English. Defendant claims that unlike the facts in People v. Jurado, supra, 38 Cal.4th at page 107, People v. Ayala, supra, 24 Cal.4th at page 266, and People v. Sims, supra, 5 Cal.4th at page 431, the record in the present case contained no evidence that S.M. did not understand the nature of the proceedings. He asserts that the prosecutor’s justification was incorrect because he incorrectly read the “i” in S.M.’s written response in the questionnaire as being “I.” He argues that the prosecutor’s erroneous interpretation of S.M.’s answer on the questionnaire cannot be accepted by the court as being a race-neutral reason for challenging S.M. Defendant relies on Johnson v. Vasquez (9th Cir. 1993) 3 F.3d 1327 to argue that reversal is required.
S.M. wrote, “I think i should be penalize strong.”
In Johnson v. Vasquez, supra, 3 F.3d 1327, the prosecutor struck the only African-American member of the jury after noticing that defense counsel appeared to be “excluding people from particular races.” (Id. at p. 1328.) The prosecutor offered the following four race-neutral justifications for striking the African-American juror: (1) that she had worked for a defense attorney; (2) that she was uneducated; (3) that she had been evasive in answering questions; and (4) that her age was a problem. (Ibid.) The record, however, did not provide any support for these reasons and the Ninth Circuit stated, “When there is reason to believe that there is a racial motivation for the challenge, neither the trial courts nor [the appellate court] are bound to accept at face value a list of neutral reasons that are either unsupported in the record or refuted by it.” (Id. at p. 1331.)
It is unclear from this record whether S.M. intended “i” to be “I” or “it.” If this were the sole evidence in the record supporting the prosecutor’s explanation for excusing S.M., this would have been problematic. However, after talking to the juror, the court agreed that S.M. had difficulty understanding English. Thus, the court’s agreement that S.M. had trouble understanding English was not based exclusively on this one answer to the questionnaire.
Defendant counters that the court’s observations should not be given any deference because language capacity, according to defendant, “is not a question of demeanor.” He maintains that the record shows that S.M. understood the questions asked of him. Defendant stresses that S.M. marked, “No, ” on his questionnaire when asked whether he had been employed by a law enforcement agency or had law enforcement training. Subsequently, when defense counsel asked the jurors if they had worked in law enforcement “or anything similar, ” S.M. stated that he had worked in the military service. Defendant argues that this demonstrated that S.M. understood the subtleties of the term “or anything similar.” Additionally, when asked by defense counsel whether he had investigated crimes, S.M. said, “I was just a soldier in my country, military service.” Defendant declares that the exchange between S.M. and the court showed that he understood the court’s questions. When the court asked him whether there was any information he wanted to provide that might be relevant, S.M. appropriately responded that his neighbor was a police officer. The court asked, “Do you know what department he’s with?” S.M. understood the question and said, “San Francisco police.”
As already discussed, some of S.M.’s answers indicated a difficulty in understanding English. More importantly, we disagree with defendant that a determination regarding a person’s understanding of English can be completely captured in a transcript. For example, the transcript does not indicate whether S.M. was struggling to understand the simple questions asked by the court. The trial court was in the best position to assess S.M.’s responses to the questions.
Defendant also stresses that the prosecutor did not ask S.M. any questions to explore his language skills. Failure to engage in meaningful voir dire on a topic claimed as a reason for dismissal can suggest the stated reason is pretextual. (Miller-El v. Dretke, supra, 545 U.S. at p. 250 , fn. 8; People v. Taylor, supra, 48 Cal.4th at p. 615.) Although we agree that the record would be stronger had the prosecutor asked questions, it appears that the questioning by the court was sufficient for the trial court to observe that S.M. was having problems understanding English. Indeed, S.M.’s responses to the court’s questions prompted defense counsel to feel that it was necessary to question him about his ability to accept the English interpretation of the court translator.
Finally, defendant contends that one of the prosecutor’s justifications for excusing S.M. was that he was a banquet waiter and defendant asserts that this fact was irrelevant and supports a conclusion that his reasons for challenging the juror were not made in good-faith. When explaining his reasons for striking S.M., the prosecutor argued that the only statement written on S.M.’s questionnaire was not well structured and then the prosecutor added the following: “I don’t know if that was a––well, I don’t know how he comes to that statement, but it’s the only thing he writes. The sentence is not that well structured. He doesn’t seem comfortable to me in English to the point he is a waiter for––a banquet waiter for the San Francisco Marriott.” A fair reading of the prosecutor’s statement indicates that he was not challenging S.M. because he was a banquet waiter. Rather, the prosecutor’s argument appears to be that S.M.’s occupation may not have required him to speak that much English.
Finally, in his supplemental brief, defendant claims that the prosecutor had challenged another male juror who had a surname suggesting a Hispanic heritage. When arguing the Wheeler motion, defense counsel asserted that S.M. was the only male Hispanic panel member, and this was not disputed in court. Counsel argued: “I am very concerned that [S.M.] was eliminated from the panel based on the fact that he would be the only Hispanic male who was on the panel and that it would deprive [defendant] of a fair trial.” Thus, there is no evidence in this record that the prosecutor excused another Hispanic juror.
C. Conclusion
It is clear from this record that the trial court considered the prosecutor’s reasons for peremptorily challenging S.M. and found the reasons to be race-neutral and consistent with the trial court’s observations. “The best evidence of whether a race-neutral reason should be believed is often ‘the demeanor of the attorney who exercises the challenge, ’ and ‘evaluation of the prosecutor’s state of mind based on demeanor and credibility lies “peculiarly within a judge’s province.” ’ ” (People v. Stevens, supra, 41 Cal.4th at p. 198.) As already discussed, the record contained evidence supporting the prosecutor’s justification based on S.M.’s lack of command of the English language. Moreover, there is a reason to believe that the prosecutor did not have a racial motivation to challenge S.M. because the victim in this case also was Hispanic, and S.M. was just as likely to sympathize with the victim as with defendant.
DISPOSITION
The judgment is affirmed.
We concur: Kline, P.J., Haerle, J.