Opinion
C050779
12-13-2006
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL LEE JOHNSON, Defendant and Appellant.
A jury convicted defendant Michael Lee Johnson of continuous sexual abuse of a child (Pen. Code, § 288.5), aggravated sexual assault of a child (Pen. Code, § 269, subd. (a)(4)), and forcible rape (Pen. Code, § 261, subd. (a)(2)). The trial court granted the district attorneys motion to dismiss the continuous sexual abuse count, sentenced defendant to 15 years to life on the aggravated sexual assault count, and stayed an eight-year term on the rape count.
On appeal, defendant contends the trial court erred by denying his Wheeler-Batson motion. We shall affirm.
People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler); Batson v. Kentucky (1986) 476 U.S. 79 (Batson).
BACKGROUND
We will briefly summarize the facts of defendants crimes as they are not relevant to the appeal. Defendant lived with the victim (L.P.), her sister, and her mother in Redding. L.P. lived there from the time she was five until she moved out to live with her father when she was eight. Starting when she was five or six, defendant would have intercourse with her. She does not remember how many times defendant sexually assaulted her, but "[i]t happened a lot." L.P disclosed the incidents about two years after she left her mother to live with her father.
DISCUSSION
Defendants sole contention on appeal is that the trial court erred in denying his Wheeler-Batson motion because the prosecutions reasons were pretextual, the trial court substituted its own reasons for the prosecutions justification for the challenge, and the trial court ignored the lack of support for the justification without further questioning the prosecutor. We disagree.
Defense counsel made his Wheeler-Batson motion after learning the prosecution would exercise a peremptory challenge to remove Juror B., the sole remaining African-American juror remaining on the venire.
The one other African-American juror on the panel was excused for hardship.
The initial voir dire revealed that Juror B. was a widow who worked as a general clerk in the post office. Her late husband had been a general laborer and an assistant minister at a church in Willows. When asked if she had any problem with the criminal justice system, Juror B. replied, "No." The court then asked her, "Do you think it works?" and Juror B. answered, "Dont ask me. Yeah. Okay. Yes." The court asked, "Is it fair?" and Juror B. responded, "It works." The court said "Okay" and Juror B. said "It works, yes. It does." She told the court she could decide the case solely on the evidence and instructions and the trial court concluded its questioning.
The prosecutor asked Juror B. if she had any children, and she responded that she had eight children and 29 grandchildren. The following exchange then took place:
Prosecutor: "Congratulations. Have any of them been through the criminal justice system at all?"
Juror B: "Yeah."
Prosecutor: "How many?"
Juror B: "I dont know. Well, when you say through the criminal justice system —"
Prosecutor: "Have — [has] anyone been charged with a crime and convicted of a crime?"
Juror B: "Yes. Uh-huh."
Prosecutor: "How many?"
Juror B: "One, two, three — four."
Prosecutor: "Four of the eight have been?"
Juror B: "Uh-huh."
Prosecutor: "Now, does that — when you laughed about the criminal justice system, was that because of your childrens experience?"
Juror B: "No, no, no."
Prosecutor: "Why did you laugh?"
Juror B: "Well, I guess for the whole — of everything. But I just laughed. No, it wasnt because of my children."
Prosecutor: "Okay. You are a happy person?"
Juror B: "Yes. Yes."
Juror B. said her familys experiences with the law would not cause her to lean toward the prosecution or defendant. She recognized that children could do stupid and inexplicable things, and she would not hold a child to the same standards of communication and self-expression as an adult.
The questioning concluded, and the court and counsel examined other jurors. Juror C. told the court that his son-in-law had committed suicide after the son-in-laws teenage daughter accused him of making sexual advances toward her. The girl had been going to a counselor who "kind of talked her into saying that" her father was making advances. Juror C. was sure that the accusation contributed to the suicide, and thought "none of it [the advances] went on really."
After the trial court and Juror C. discussed whether this would influence his evaluation of the evidence, the trial court had the following exchange with Juror B:
The Court: "You were nodding in the affirmative, [Juror B.]?"
Juror B: "No. No, Im just listening."
The Court: "Okay. When I said maybe a counselor was involved?"
Juror B: "I dont know. Im just listening."
The Court: "Okay. You looked like you were agreeing with my statement."
Juror B: "Oh, well, yes. Im just listening. You know, Im emotional."
The Court: "Okay."
Juror B: "No I was just listening. Just letting him know Im listening."
The prosecutor gave several reasons for his peremptory challenge of Juror B. He felt "something was wrong when the court asked about the judicial system and the criminal justice system and she hesitated and then laughed." This response and her laughing again after further questioning made the prosecutor nervous. Juror B. wasnt forthcoming about her familys experience with the criminal justice system until asked directly about it by the prosecutor. When Juror C. talked about his son-in-laws suicide, Juror B. "shook her head and seemed concerned."
The trial court then stated that Juror B. "nodded her head in agreement when she was blaming the therapist for, in effect, creating a false allegation." The prosecutor agreed and proceeded to give more justifications for the challenge. He was concerned Juror B. would give "undue credence in someone trying to fabricate this story." He also noted that Juror B. also always agreed with the prosecutor. The prosecutor "never got a feeling she would be forthcoming and say exactly what she felt."
The prosecutor also said that Juror Bs husband had been a minister, and that she had said she was very religious. He felt Juror B. would not be able to put aside her personal sympathies, and people with ministerial backgrounds tended to favor criminal defendants. Finally, Juror B. became very upset and frowned frequently when counsel brought up the Michael Jackson case.
The trial court denied the Wheeler-Batson motion. It stated Juror B. "appears to be a supercilious person. Shes smiling, nodding." The court could see why the prosecutor was "concerned about her judgment." It found that the prosecutions challenge was motivated by Juror B.s "ability to be an objective, impartial juror" rather than her race. After the court denied the motion, the prosecution subsequently exercised a peremptory challenge against Juror B.
The trial court ruled on the validity of the prosecutions reasons for the challenge before the prosecutor exercised his peremptory challenge against Juror B. The court also ruled that defendant did not have to make an additional objection when the prosecutor exercised the challenge against Juror B.
The relevant legal principles involved in a Wheeler-Batson motion were recently reiterated by the United States Supreme Court: "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. [Citation.]" (Johnson v. California (2005) 545 U.S. 162, 168 , fn. omitted.)
"`The trial courts ruling on this issue is reviewed for substantial evidence. [Citation.] `We review a trial courts determination regarding the sufficiency of a prosecutors justifications for exercising peremptory challenges "`with great restraint." [Citation.] We presume that a prosecutor uses peremptory challenges in a constitutional manner and give great deference to the trial courts ability to distinguish bona fide reasons from sham excuses. [Citation.] So long as the trial court makes a sincere and reasoned effort to evaluate the nondiscriminatory justifications offered, its conclusions are entitled to deference on appeal. [Citation.] [Citation.] `[I]n fulfilling [this] obligation, the trial court is not required to make specific or detailed comments for the record to justify every instance in which a prosecutors [nondiscriminatory] reason for exercising a peremptory challenge is being accepted by the court as genuine. This is particularly true where the prosecutors [nondiscriminatory] reason for exercising a peremptory challenge is based on the prospective jurors demeanor, or similar intangible factors, while in the courtroom. [Citation.]" (People v. Ward (2005) 36 Cal.4th 186, 200.)
Initially, we note that the trial court did not expressly find that defense counsel had made a prima facie showing. But the trial court determined that the prosecutors reasons were race neutral so the issue of defendants showing is moot. (Hernandez v. New York (1991) 500 U.S. 352, 359 .)
The prosecutions reasons for the peremptory challenge centered on Juror B.s demeanor and her evasiveness in addressing her familys history with law enforcement. The record documents her evasiveness. As the prosecutor correctly pointed out, Juror B. did not volunteer the information about her familys considerable dealings with law enforcement until directly asked about it by the prosecutor. Even then, her answers were evasive, taking several questions from the prosecutor to pin her down.
The prosecutors assessment of Juror B.s demeanor is also supported by the record. Juror B. agreed with the prosecutor that she laughed when questioned about the criminal justice system. She also acknowledged nodding during Juror C.s story about his son-in-laws suicide. The court later agreed with the prosecutor that Juror B.s demeanor during Juror C.s story indicated she agreed that the therapist was to blame in bringing false accusations of molestation against Juror C.s son-in-law.
These are inherently plausible justifications for the peremptory challenge. Evasive responses to the prosecutions questions about her familys criminal history indicates a willingness on Juror B.s part to hide information from the prosecution. A jurors inappropriate laughter is a race-neutral reason for a challenge. (People v. Perez (1994) 29 Cal.App.4th 1313, 1330 & fn. 8.) While defendant claims the "most obvious answer" to Juror B.s laughter was her being very nervous when speaking in public, we are not going to second-guess the trial courts interpretation of Juror B.s laughter on a cold appellate record. (Ibid.)
Juror B.s demeanor and behavior during Juror C.s story supports the inference that she would give more credibility to claims that the accusations against defendant were fabricated. This is also a plausible, race-neutral reason for the challenge.
Since the prosecutions primary justifications were plausible and supported by the record, the trial court did not have to make detailed findings or question the prosecutor about his reasons. (People v. Reynoso (2003) 31 Cal.4th 903, 923 (Reynoso).) We therefore reject defendants claim that the trial court should have made a more detailed inquiry into the reasons for the challenge.
Defendant contends that the trial court substituted its reasons for the prosecutions when it called Juror B. "supercilious." The prosecutor faulted Juror B. for being evasive, hiding her feelings, and always agreeing with him, none of which fit the definition of supercilious. While the trial court must determine whether the prosecutions reasons are race neutral and subjectively genuine (Reynoso, supra, 31 Cal.4th at p. 924) rather than substitute its own view regarding the juror for the prosecutions, the error, if any, was harmless. The prosecutor gave plausible, race-neutral reasons for the challenge, and the trial court accepted them by stating it could understand how the prosecutor had come to his conclusions. The record shows that the trial courts denial of defendants Wheeler-Batson motion was based on its acceptance of the prosecutors justifications for the challenge.
Defendant claims that some of the prosecutions reasons for the challenge were not supported by the record. The prosecutors contention that Juror B. always agreed when the prosecutor asked her questions is an overstatement. Although Juror B. frequently agreed with the prosecutor, she replied "no" when asked if her laughter during voir dire was due to her childrens experiences with the criminal justice system. This claim was part of the prosecutors larger point that Juror B. was hiding things from him. The prosecutors exaggeration does not taint the plausible, race-neutral contention that she was being evasive.
The prosecutor also inaccurately claimed that Juror B. said she was very religious. While she never said this, her husband was an assistant minister. It is reasonable to infer that the wife of an assistant minister would be very religious. The prosecutions misstatement does not support concluding that his stated reasons for the peremptory challenge were pretextual.
A prosecutors reasons for a peremptory challenge do not even have to be reasonable. So long as they are plausible and race neutral, defendant will not be entitled to relief. (People v. Huggins (2006) 38 Cal.4th 175, 231, fn. 15.) The prosecutions stated reasons for the challenge are both plausible and race neutral. We reject defendants contention that the trial court erroneously denied his Wheeler-Batson motion.
DISPOSITION
The judgment is affirmed.
We Concur:
SIMS, Acting P.J.
HULL, J.