Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 05F01670
HULL, J.A jury convicted defendant Russell Jones of first degree murder (Pen. Code, §§ 187, subd. (a), 189; undesignated statutory references that follow are to the Penal Code) and found true special circumstance allegations that the murder was committed within the course of a robbery (§ 190.2, subd. (a)(17)(A)) and a burglary (§ 190.2, subd. (a)(17)(G)). The trial court found that defendant had two prior strike convictions. (§§ 667, subds. (b)-(i), 1170.12.) He was sentenced to state prison for life without the possibility of parole and was ordered to pay fines and fees including a $200 restitution fine suspended unless parole is revoked. (§ 1202.45.)
On appeal, defendant contends (1) his Wheeler-Batson (People v. Wheeler (1978) 22 Cal.3d 258; Batson v. Kentucky (1986) 476 U.S. 79 [90 L.Ed.2d 69]) motion was erroneously denied, and (2) the suspended restitution fine must be stricken; the Attorney General concedes this last point. We modify the judgment and, as so modified, affirm.
Facts and Proceedings
The facts of the first degree murder are not at issue and need not be set forth in this opinion. Relevant procedural facts will be set forth in the Discussion.
Discussion
I The Batson-Wheeler Motion
Defendant contends the trial court erred when it denied his Wheeler-Batson motion. He claims the ruling deprived him of his federal and state rights to a jury selected according to non-discriminatory criteria. We disagree.
During jury voir dire, the prosecutor exercised his second peremptory challenge against H.T. and his twelfth peremptory challenge against D.Y. After the latter challenge, defense counsel made a Wheeler-Batson motion, arguing that by challenging H.T. and D.Y., the prosecutor had dismissed “the two African-American jurors who [had] made it into the jury box.” Defendant is African-American.
The trial court stated it was not requiring any explanation from the prosecutor but asked the prosecutor whether he wanted to discuss “the issue of prima facie case based on the state of the record.”
The prosecutor explained that H.T., in her questionnaire, had said that her brother had been in prison for manslaughter, her son had been in jail for unlawful driving or taking of a vehicle, and she believed African-Americans serve more time than whites do “for the same crimes.”
The prosecutor explained that D.Y. had a cousin who had been convicted of manslaughter in 1995. The prosecutor further explained that when he asked D.Y. about bad experiences with police, she did not want to detail any such experiences, but her expression indicated that she had had them. Also, she had appeared emotional when the prosecutor wanted to ask her about these experiences, and it appeared she did not want to talk about them.
Parenthetically, we note that the prosecutor asked the trial court to “agree with [him] on the record” that D.Y. had appeared to be emotional. On appeal, defendant suggests the prosecutor had done so because he was “[a]pparently aware of Snyder v. Louisiana (2008) __ U.S. ___ [170 L.Ed.2d 175].” We note that the Wheeler-Batson motion was heard on November 7, 2007, and Snyder was decided months later, on March 19, 2008.
In any event, the prosecutor added that, during questioning, D.Y. discussed an incident that she had not reported in her questionnaire, even though the questionnaire contained “pointed questions” about bad experiences with police officers. Based on this, the prosecutor believed that D.Y. was prepared to be deceitful in order to serve on this jury.
Defense counsel countered that H.T. had expressed her belief that the legal processes worked. He noted that, on her questionnaire, H.T. had expressed her belief that her son had “done wrong and had to serve time.” Defense counsel disagreed with the prosecutor’s assertion that D.Y. “looked like she was trying to not say what she actually said.”
Quoting Johnson v. California (2005) 545 U.S. 162 [162 L.Ed.2d 129], the trial court noted that a prima facie case of discrimination is shown where the proffered evidence “gives rise to an inference of discriminatory purpose.”
The trial court found no prima facie case of discrimination. It noted that the prosecutor had used two of his 12 challenges against African-American women. The court observed that D.Y. “was not particularly forthcoming,” and that during voir dire, she had described an encounter with police that “was bothering her,” although her description of the event was “somewhat murky” and “unclear.” The court noted that H.T.’s comment that “people of color seem to get a lot more time than other people” “would be very concerning, and appropriately so”; moreover, H.T.’s son had served time in jail and her brother had served time in prison for manslaughter.
“Both the state and federal Constitutions prohibit the use of peremptory challenges to exclude prospective jurors based on race or gender. [Citations.] Such a use of peremptories by the prosecution ‘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.’ [Citation.]
“There is a rebuttable presumption that a peremptory challenge is being exercised properly, and the burden is on the opposing party to demonstrate impermissible discrimination. [Citations.] To do so, a defendant must first ‘make out a prima facie case “by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose.” [Citation.] 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... discrimination.” [Citation.]’ [Citation.] The same three-step procedure applies to state constitutional claims. [Citation.]” (People v. Bonilla (2007) 41 Cal.4th 313, 341 (Bonilla).)
“When the trial court expressly states that it does not believe a prima facie case has been made, and then invites the prosecution to justify its challenges for the record on appeal, the question whether a prima facie case has been made is not mooted, nor is a finding of a prima facie showing implied. [Citations.] Under such circumstances, we sustain the trial court if, upon independently reviewing the record, we conclude the totality of the relevant facts does not give rise to an inference of discriminatory purpose. [Citation.]” (People v. Howard (2008) 42 Cal.4th 1000, 1018.)
As in Bonilla, defendant relies “on the fact that all African-Americans--two of two--were struck from the juror pool. It is true the prosecution used peremptories to challenge both African-Americans in the pool, but ‘the small absolute size of this sample makes drawing an inference of discrimination from this fact alone impossible. “[E]ven the exclusion of a single prospective juror may be the product of an improper group bias. As a practical matter, however, the challenge of one or two jurors can rarely suggest a pattern of impermissible exclusion.”’ [Citations.]” (Bonilla, supra, 41 Cal.4th at pp. 342-343; accord People v. Howard, supra, 42 Cal.4th at p. 1018, fn. 10 [“The challenge of one or two jurors, standing alone, can rarely suggest a pattern of impermissible exclusion”].) The small size of the sample distinguishes defendant’s principal authority, Miller-El v. Dretke (2005) 545 U.S. 231 [162 L.Ed.2d 196], in which the 10 black jurors were removed by peremptory challenge. (Id. at pp. 240-241.)
Defendant claims Bonilla was wrongly decided. The argument must be directed to a court higher than this one. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) But, we note, defendant misreads Bonilla: it does not suggest that, “if you remove the only two African-Americans you have, the surrounding facts and circumstances do not support an inference of discriminatory purpose.” (Italics added.) Rather, Bonilla holds that “drawing an inference of discrimination from [the removal] alone” is “impossible”; it is the surrounding facts and circumstances that will, or will not, support an inference of discrimination in a particular case.
Here, as in Bonilla, “the information elicited in voir dire showed race-neutral reasons for excusing both prospective jurors.” (Bonilla, supra, 41 Cal.4th at p. 343.) As the prosecutor noted, H.T. had a brother who had served a prison term for manslaughter and a son who had served a jail sentence for unlawful driving or taking of a vehicle. H.T. was similar to the dismissed prospective juror in Bonilla whose father had been convicted of homicide and whose husband had been convicted of a felony. (Ibid.)
Defendant counters that having a close relative in prison is not a race-neutral reason for a peremptory challenge because more “persons of color” have relatives in prison than do Caucasians. But Bonilla’s identification of the factor as race-neutral is binding on this court. (Auto Equity Sales, Inc. v. Superior Court, supra, 57 Cal.2d at p. 455.)
Besides having close relatives who had been convicted of crimes, H.T. opined that “people of color” serve “a lot more time” than others “for the same crimes.” A juror’s assertion that the justice system discriminates against certain groups is a valid, race-neutral basis for a peremptory challenge. (People v. Cornwell (2005) 37 Cal.4th 50, 69-70; People v. Walker (1988) 47 Cal.3d 605, 625-626.)
We note that defendant filed a motion asking this court to take judicial notice of the number of persons of color incarcerated in state prison and the number of persons of color in the State of California. We denied the motion because the material had not been presented to, and considered by, the trial court in the first instance. (People v. Preslie (1977) 70 Cal.App.3d 486, 493.)
In People v. Lenix (2008) 44 Cal.4th 602, our Supreme Court recently held that, in appropriate circumstances, “comparative juror analysis must be performed on appeal even when such an analysis was not conducted below.” (Id. at p. 607.)
Following Lenix, defendant renewed his motion, arguing the material is necessary to a comparative juror analysis. However, Lenix explains that comparative juror analysis will be undertaken for the first time on appeal when “reviewing claims of error at Wheeler/Batson’s third stage.” (Ibid.) Here, in contrast, defendant is asserting error at Wheeler/Batson’s first stage, which Lenix expressly “does not implicate.” (Id. at p. 622, fn. 15; see Bonilla, supra, 41 Cal.4th at pp. 343, 350 [comparative analysis not required in first stage case, even though prosecutor stated reasons for the record].) Defendant’s motion for judicial notice is denied.
Relying largely on information outside the appellate record, defendant claims the challenge to H.T. was improper because her assertion about the justice system was correct. But the prosecutor was entitled to challenge H.T. for any reason including her beliefs about the justice system, whether correct or not, so long as the reason was not based upon group bias, i.e., H.T.’s membership in a particular group. (People v. Gutierrez (2002) 28 Cal.4th 1083, 1122.)
Like H.T., prospective juror D.Y. had a relative who had been convicted of a serious crime: her cousin had been convicted of manslaughter. This was a race-neutral reason for a peremptory challenge. (People v. Barber (1988) 200 Cal.App.3d 378 [prospective juror’s first cousin had served prison sentence and was awaiting trial on new charges].)
Furthermore, during voir dire, D.Y. described an unpleasant encounter with police. She had omitted the incident from her questionnaire, which had inquired about “memorably good or bad experience with a law enforcement officer,” even though she had written about a separate “good experience.” It appeared to the prosecutor that D.Y. did not want to talk about the matter. The trial court agreed that she appeared “to be not forthcoming.” A prior negative experience with law enforcement constitutes a valid, race-neutral reason for a peremptory challenge. (People v. Gutierrez, supra, 28 Cal.4th at p. 1125; People v. Turner (1994) 8 Cal.4th 137, 171.) So does the fact that a candidate is withholding relevant information in voir dire (or in a questionnaire). (People v. Adanandus (2007) 157 Cal.App.4th 496, 509.)
Here, D.Y.’s encounter with police and her failure to reveal it on her questionnaire each constituted a valid, race-neutral reason upon which the prosecutor could challenge her. That is so regardless of whether D.Y., with her experience as a housing eligibility evaluator, had good cause to question the police conduct in the prior incident.
Defendant claims the trial court’s finding that D.Y. was not forthcoming is “not accurate” and “not based on facts in the record.” We disagree. As defendant concedes, the record shows that D.Y. was “hesitant to criticize the officer’s investigatory tactics if he was, in fact, following correct procedure.” But even if correct, that procedure evidently had resulted in a “memorably... bad experience” that should have been revealed on the questionnaire. The fact that it was not revealed supports a finding that D.Y. had not been forthcoming.
The prosecutor asked D.Y., “As you sit here today, does that still bother you a little bit?” D.Y. answered, “No, not in my judgment, no.” Shortly thereafter, the trial court remarked that “something happened there which was bothering her.” (Italics added.) Defendant claims the trial court’s “failure to listen accurately to” D.Y. is “troubling.” But the court did not purport to find that the incident “was bothering” D.Y. on the date of the Wheeler-Batson motion, which she denied, rather than at or near the time of the incident. No error or inconsistency appears.
Defendant claims the trial court erred by failing to question D.Y. about the incident to clarify the portions of her remarks that it had found to be “somewhat murky” and “unclear.” However, the court found with certainty that something related to law enforcement, which had been bothering her but had not been disclosed on her questionnaire, had happened. Defendant does not contend the court’s certainty would have evaporated had other aspects of the incident been clarified. Thus, even if there was error, no prejudice appears on this record.
Defendant lastly argues his claim is supported by comparative juror analysis. However, as we have explained, we do not undertake that analysis for the first time on appeal in a first stage Wheeler-Batson case. (See, ante, at p. 8.)
II The Suspended Restitution Fine
Defendant contends, and the Attorney General concedes, the suspended restitution fine (§ 1202.45) must be stricken because his sentence precludes parole. We accept the Attorney General’s concession. (People v. Oganesyan (1999) 70 Cal.App.4th 1178, 1183.) We shall strike the section 1202.45 fine.
Disposition
The judgment is modified by striking the suspended restitution fine. As so modified, the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment and to forward a certified copy to the Department of Corrections and Rehabilitation.
We concur: SCOTLAND, P. J., BUTZ, J.