Opinion
D073729
06-15-2018
THE PEOPLE, Plaintiff and Respondent, v. SANTIAGO JUANDIEGO, Defendant and Appellant.
Sheila O'Connor, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina, Meagan J. Beale, and Alan L. Amann, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. RIF1501729 ) APPEAL from a judgment of the Superior Court of Riverside County, Michele D. Levine, Judge. Affirmed. Sheila O'Connor, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina, Meagan J. Beale, and Alan L. Amann, Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
A jury convicted Santiago JuanDiego of battery causing serious bodily injury. The trial court sentenced him to a prison term of six years. On appeal, he contends the trial court erred by denying his Batson/Wheeler motion. We conclude the prosecutor's exercise of six peremptory challenges to excuse male jurors does not establish a prima facie case of discriminatory purpose, where the record establishes nondiscriminatory reasons for excusing these jurors that dispel any inference of bias. We therefore affirm.
Batson v. Kentucky (1986) 476 U.S. 79 (Batson); People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler).
FACTUAL AND PROCEDURAL BACKGROUND
JuanDiego and A.S.P. worked at the same landscaping company; sometimes A.S.P. would drive JuanDiego to work because JuanDiego did not have a car. One day, A.S.P. gave JuanDiego a ride to Moreno Valley to pick up some money. The men were out for several hours, during which time they drank beer, before returning to A.S.P.'s backyard, where they drank more beer. The men got into a fight, which resulted in A.S.P. sustaining a concussion, a torn or bitten-off ear, a puncture wound in the front of his neck, rib fractures, a bruise injury to his eye, a nail avulsion, and abrasions. JuanDiego did not have any significant injuries.
A.S.P. testified JuanDiego attacked him. JuanDiego denied initiating the fight. He testified that A.S.P. started it by striking him in the torso and head with a tire iron; he testified he was defending himself.
An information charged JuanDiego with aggravated mayhem (count 1; Pen. Code, § 205); assault with a deadly weapon, a tire iron (count 2; § 245, subd. (a)(1)); and assault with force likely to produce great bodily harm (count 3, § 245, subd. (a)(4)). The information alleged JuanDiego personally inflicted great bodily harm in connection with counts 2 and 3. (§§ 12022.7, subd. (a); § 1192.7, subd. (c)(8).)
All statutory references are to the Penal Code.
On JuanDiego's motion at the close of the prosecution's case, the trial court dismissed count 2 under section 1118.1.
A jury found JuanDiego guilty in count one of battery causing serious bodily injury, a lesser included offense of mayhem, and in count three of assault with force likely to produce great bodily harm, and found true the allegation that he personally inflicted great bodily harm. The trial court sentenced JuanDiego to a total term of six years in prison. He timely filed a notice of appeal.
DISCUSSION
JuanDiego's sole challenge on appeal is that the trial court erred when it denied his Batson/Wheeler motion. He contends the prosecutor discriminatorily eliminated males from the jury because men would have been more understanding of a fight among friends. He argues that the prosecutor's exercise of six out of seven peremptory strikes to excuse men from the prospective jury, leaving less than half of the remaining jury pool consisting of men, amounted to a prima facie case for discrimination.
I. Applicable Law
A prosecutor may exercise a peremptory challenge against a prospective juror for any reason, except for bias against a group that is being excluded. (Batson, supra, 476 U.S. at p. 89; Wheeler, supra, 22 Cal.3d at pp. 276-277.) The use of peremptory challenges to strike jurors on the basis of gender violates the United States and California Constitutions. (J.E.B. v. Ala. ex rel. T.B. (1994) 511 U.S. 127, 129; People v. Carasi (2008) 44 Cal.4th 1263, 1291 (Carasi).)
To determine whether a prosecutor has exercised peremptory challenges in a discriminatory manner, our inquiry under Batson/Wheeler consists of three steps. "First, the opponent of the strike must make out a prima facie case by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose in the exercise of peremptory challenges. Second, if the prima facie case has been made, the burden shifts to the proponent of the strike to explain adequately the basis for excusing the juror by offering permissible, nondiscriminatory justifications. Third, if the party has offered a nondiscriminatory reason, the trial court must decide whether the opponent of the strike has proved the ultimate question of purposeful discrimination." (People v. Scott (2015) 61 Cal.4th 363, 383 (Scott).)
A prima facie case of discrimination in the use of peremptory challenges is established " 'by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose.' " (People v. Harris (2013) 57 Cal.4th 804, 833 (Harris).) " '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.' " (People v. Parker (2017) 2 Cal.5th 1184, 1211.) The defendant meets his "burden at the first, prima facie, stage . . . by producing evidence sufficient to permit the trial judge to draw an inference that discrimination has occurred." (Harris, at p. 833.)
Unless a trial court applies the wrong standard, a trial court's ruling on a Batson/Wheeler motion is reviewed for substantial evidence. " 'The determination of whether a defendant has established a prima facie case "is largely within the province of the trial court whose decision is subject only to limited review. [Citations.]' [Citation.]" (People v. Rushing (2011) 197 Cal.App.4th 801, 809 (Rushing).) On appeal, we "examine[] the entire record of voir dire for evidence to support the trial court's ruling." (People v. Young (2005) 34 Cal.4th 1149, 1172 (Young).)
(See People v. Zaragoza (2016) 1 Cal.5th 21, 42-43 [explaining that a reviewing court "independently review[s] the record . . . before the trial court to determine whether it supports an inference" of discriminatory intent, where the trial court relies on the disapproved " ' "strong likelihood standard" ' " in ruling that a defendant failed to make a prima facie case of discrimination]; Johnson v. California (2005) 545 U.S. 162, 168 [rejecting the " 'more likely than not' " standard for the prima facie showing of discrimination]; People v. Bonilla (2007) 41 Cal.4th 313, 341 (Bonilla) [ordinarily, an appellate court reviews a trial court's denial of a Batson/Wheeler motion "deferentially, considering only whether substantial evidence supports its conclusions"].) Here, there is no indication the trial court relied on the wrong standard in making its prima facie ruling.
"Although the question at the first stage concerning the existence of a prima facie case depends on consideration of the entire record of voir dire as of the time the motion was made [citation], . . . certain types of evidence may prove particularly relevant. [Citation.] Among these are that a party has struck most or all of the members of the identified group from the venire, that a party has used a disproportionate number of strikes against the group, that the party has failed to engage these jurors in more than desultory voir dire, that the defendant is a member of the identified group, and that the victim is a member of the group to which the majority of the remaining jurors belong. [Citation.] A court may also consider nondiscriminatory reasons for a peremptory challenge that are apparent from and 'clearly established' in the record [citations] and that necessarily dispel any inference of bias." (Scott, supra, 61 Cal.4th at p. 384.)
"If the reviewing court concludes the trial court properly determined no prima facie case was made, it need not review the adequacy of the prosecutor's justifications, if any, for the peremptory challenges." (Young, supra, 34 Cal.4th at p. 1173.) Similarly, where a trial court determines no prima facie case exists, but still allows the prosecutor to state reasons for exercising a peremptory challenge without ruling on the validity of those reasons, an appellate court properly reviews the matter as a first stage case without the need for examining the prosecutor's justifications. (Scott, supra, 61 Cal.4th at pp. 386, 391.)
II. Jury Selection
In selecting the jury, the prosecutor exercised seven peremptory challenges. Six of the seven challenges were used to strike men from the jury.
The first juror excused by the prosecutor was Dr. G., a male physician in family practice. In voir dire, Dr. G. stated that he had previously testified in court as a medical expert and that he enjoyed "educating the jury" in that circumstance. When the court pointed out to him that, as a juror, he could not act as a self-appointed expert and testify to the jury, but he could use his background and experience in evaluating the testimony he heard, he initially responded that he would "probably not" be able to do that. He later stated he would not impose his own opinion as an expert on the jury. He also stated he thought "everybody's entitled to self-defense," and that a confession would be the strongest piece of evidence in a trial.
The prosecutor next struck Dr. W., a male veterinarian who also acted as an expert witness for the California Veterinary Medical Board. In voir dire, Dr. W. stated that, as a director of two animal care facilities, he hired, managed, and befriended "a number of people who have criminal records." Some of them had shared their stories involving negative contact with law enforcement. Dr. W. commented that, in working with individuals who were trying to rehabilitate themselves from issues of aggression, alcoholism, violence, prison, and drugs, he had "developed . . . opinions about the process and alcohol and outcome" and that he was "familiar with the biology and the chemical [sic] behind it, and [was] also experienced with the judicial outcomes of these situations."
With his third peremptory challenge, the prosecutor excused a female, Ms. S., from the prospective jury. When asked whether someone who becomes intoxicated should be held responsible for his or her actions, Ms. S. initially stated she was "nervous" and "confused," and then stated that "it all [depended] on the . . . circumstances, the evidence that had been brought before to show the whole picture of exactly what happened."
The prosecutor exercised his fourth peremptory challenge to remove Mr. S. from the prospective jury. Mr. S., a former marine, stated that he believed he had a right to retaliate against violence, "even if the individual walked off." He recognized that it "probably . . . wouldn't have been self-defense . . . if the individual walked off and I chased him down. [But] [a]s a Marine, I'm probably not going to stand there and be kicked, one way or the other." Upon further questioning, Mr. S. ultimately stated that he believed he could apply and follow the law of self-defense.
With his fifth peremptory challenge, the prosecutor excused Mr. O. from the prospective jury. Mr. O stated that he was a recent graduate, he was unemployed, and he lived with his parents. He had two cousins who had spent time in jail, but he believed he could be a fair and impartial juror.
The prosecutor exercised his sixth peremptory challenge to strike Mr. U. from the prospective jury. Mr. U. was a retired maintenance worker. He stated that it is "only nature" to be mad at an attack, that "most people will retaliate because that's our nature," and "[i]t's in our nature to respond to a situation that is critical."
Finally, with his seventh peremptory challenge, the prosecutor excused Mr. R. from the prospective jury. When asked whether he was more the type to scream and run or to stand his ground, Mr. R. stated he did not understand the question, and then, after responding unintelligibly, stated "[he] [did]n't think [he] understood [him]self either." Later, he said that, if his children were not involved, he probably would not retreat if he were threatened; "[he]'d probably do something about it."
Defense counsel made a Batson/Wheeler motion "relat[ing] to gender," stating, "the prosecutor has now executed seven peremptory challenges. Six of them are to male jurors. . . . I think it's showing, on its face, that he is systematically excluding men from this jury panel. There are one, two, three, four, five men left." Counsel offered no additional evidence or argument in support of the motion.
The trial court denied JuanDiego's Batson/Wheeler motion at the first step of the inquiry, finding he had not established a prima facie case of discrimination, but the court nonetheless invited the prosecutor to state for the record any reasons for excusing the jurors. The court then reiterated its finding that JuanDiego had not made a prima facie showing of discrimination.
JuanDiego does not dispute that this case remains a first stage case given the trial court's findings. Accordingly, we decline to discuss the prosecutor's proffered nondiscriminatory reasons. (Scott, supra, 61 Cal.4th at p. 390 ["the fact that the prosecutor volunteered one or more nondiscriminatory reasons for excusing the juror is of no relevance at the first stage"].) --------
When the parties accepted the final panel of twelve jurors, five of them (or approximately 42%) were men. III. The Trial Court Properly Denied JuanDiego's Batson/Wheeler Motion
JuanDiego contends that, when the prosecutor used six out of seven peremptory challenges to strike males from the prospective jury, a prima facie showing of intentional discrimination was made. We disagree.
In denying JuanDiego's motion, the trial court concluded there was insufficient evidence of a "systematic removal" of males from the jury, and the court was able to identify nondiscriminatory reasons for excluding the jurors at issue, such as the nature of their life experiences and the court's own observations during the voir dire process. An examination of the record reveals there were nondiscriminatory reasons justifying the prosecutor's peremptory challenges, and thus sufficient evidence to support the trial court's ruling.
Dr. G. was a physician in family practice, and Dr. W. was a veterinarian. Courts have recognized that it is reasonable for a prosecutor to excuse prospective jurors with health care or social services experience, as this experience may make them more sympathetic to defendants. (People v. Trevino (1997) 55 Cal.App.4th 396, 411.) Moreover, Dr. G. stated that he enjoyed his role as a medical expert where he had the opportunity to educate the jury. Although Dr. G. subsequently stated he could refrain from similar actions in his role as a juror, it was reasonable for the prosecutor to remain concerned by his responses. (See People v. Adanandus (2007) 157 Cal.App.4th 496, 505 [no inference of discriminatory intent where challenged juror "was equivocal about the effect his views on the drug laws might have"]; Rushing, supra, 197 Cal.App.4th at p. 812 ["the prosecution is not required to accept at face value a prospective juror's assurance that, despite an answer indicating the contrary, she would have no problem being neutral"].) Dr. W.'s statement that he had close relationships with people with criminal records and had formed personal opinions regarding alcohol use both serve as nondiscriminatory reasons to support the exercise of a peremptory challenge against him. Indeed, a prosecutor can exercise peremptory challenges based on "no more than a 'hunch' about the prospective juror [citation], so long as it shows that the peremptory challenges were exercised for reasons other than impermissible group bias." (People v. Williams (1997) 16 Cal.4th 635, 664.)
Mr. S., Mr. U., and Mr. R. all made statements suggesting they might be understanding of a retaliatory attack, which would have favored the defense here, not the prosecution, and therefore provided ample reason for the prosecutor to excuse them. (People v. Stanley (2006) 39 Cal.4th 913, 939-940 [prosecutor's perception potential juror harbored " 'sympathy for the defendant' " was race-neutral reason for exercise of peremptory challenge].) Moreover, Mr. R.'s initial statements indicated he had some trouble understanding questions and articulating responses, which reasonably could have caused the prosecutor to believe he might have difficulty following and applying the law as a juror. (See People v. Turner (1994) 8 Cal.4th 137, 169, disapproved on another ground by People v. Griffin (2004) 33 Cal.4th 536 ["Of course, where a prosecutor's concern for a juror's ability to understand is supported by the record, it is a proper basis for challenge."]; People v. Barber (1988) 200 Cal.App.3d 378, 398 ["the record arguably supports the prosecutor's expressed concern regarding [the juror's] ability to comprehend legal principles"].)
The prosecutor did not engage in any significant discussion with Mr. O., but the attorneys had the benefit of receiving the jurors' responses to the juror questionnaires during voir dire. Under similar circumstances, our Supreme Court has held that "an attorney's failure to engage jurors in voir dire is less significant than when the attorneys know nothing about the jurors prior to striking them." (People v. Reed (2018) 4 Cal.5th 989, 1001 (Reed), citing People v. Taylor (2010) 48 Cal.4th 574, 615.) Here, Mr. O.'s questionnaire responses indicated he had just graduated, was unemployed, and lived with his parents. "A potential juror's youth and apparent immaturity are [gender]-neutral reasons that can support a peremptory challenge." (People v. Lomax (2010) 49 Cal.4th 530, 575.)
We are not persuaded by JuanDiego's remaining arguments. JuanDiego contends he made an adequate prima facie showing based on the disproportionate number of men excluded from the jury. When a party uses a disproportionate number of strikes against a particular group, it is probative on the issue of discriminatory intent. (See Scott, supra, 61 Cal.4th at p. 384.) It is not dispositive, however, and in a number of cases, our Supreme Court has found that a defendant has failed to state a prima facie case of discrimination even in the face of a disproportionate number of strikes against a particular gender. (See People v. Dement (2011) 53 Cal.4th 1, 19, abrogated on other grounds by People v. Rangel (2016) 62 Cal.4th 1192 [prosecutor exercised 10 of his 13 peremptory challenges against female prospective jurors; no prima facie case demonstrated]; Carasi, supra, 44 Cal.4th at pp. 1291, 1295 [prosecutor exercised 20 out of 23 peremptory challenges against female prospective jurors; no prima facie case demonstrated]; Bonilla, supra, 41 Cal.4th at pp. 345, 349 [prosecutor used 20 out of 30 peremptory challenges against female prospective jurors; no prima facie case demonstrated].)
As noted, ante, a review of the record indicates gender-neutral reasons for the prosecutor's peremptory challenges against each of the male jurors. We further note that the prosecutor accepted a panel consisting of five men (approximately 42% of the panel), excused a female juror first before challenging three other males, and did not use all his peremptory challenges. (See People v. Lenix (2008) 44 Cal.4th 602, 629 [prosecutor's acceptance of a panel containing members of the group "strongly suggests" that discrimination was not a motive in the challenges]; People v. Jones (2017) 7 Cal.App.5th 787, 806 [fact two members of the group were ultimately seated on the jury supported the trial court's conclusion that defendant failed to make a prima facie showing].) Viewed in context, the prosecutor's actions dispel any inference of discrimination that might otherwise be drawn from a pure focus on the percentage of strikes used against male members of the jury panel. (Reed, supra, 4 Cal.5th at pp. 78-79 [no prima facie showing where prosecutor accepted jury that contained two members of an identified group, and three members of the group ultimately sat on the jury, despite prosecutor using five of his first eight strikes (about 63%) on group members].)
JuanDiego also urges that a comparative analysis of the jurors "further reveals" the prosecutor's discriminatory intent. Our Supreme Court has concluded that such an analysis is neither helpful nor required when defendant has failed to establish a prima facie case of discrimination. (Bonilla, supra, 41 Cal.4th at p. 350 ["Whatever use comparative juror analysis might have in a third-stage case for determining whether a prosecutor's proffered justifications for his strikes are pretextual, it has little or no use where the analysis does not hinge on the prosecution's actual proffered rationales."].) Like the court in Bonilla, "we thus decline to engage in a comparative analysis here." (Ibid.)
In sum, the totality of the record dispels any inference of discriminatory intent by the prosecutor in exercising his peremptory challenges to excuse six male prospective jurors. Because JuanDiego failed to establish a prima facie case of discrimination, the trial court did not err in denying his Batson/Wheeler motion.
DISPOSITION
The judgment is affirmed.
GUERRERO, J. WE CONCUR: HALLER, Acting P. J. DATO, J.