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People v. Kinchen

California Court of Appeals, First District, Second Division
Mar 18, 2008
No. A115317 (Cal. Ct. App. Mar. 18, 2008)

Opinion


THE PEOPLE, Plaintiff and Respondent, v. KARL KINCHEN, Defendant and Appellant. A115317 California Court of Appeal, First District, Second Division March 18, 2008

NOT TO BE PUBLISHED

Contra Costa County Super. Ct. No. 50514919

Haerle, Acting P.J.

I. INTRODUCTION

Appellant Karl Kinchen appeals from the judgment following his conviction of driving under the influence of alcohol (Veh. Code, § 23152, subd. (a)); driving while having a blood-alcohol level of 0.08 percent or higher (Veh. Code, § 23152, subd. (b)); driving on a suspended or revoked license (Veh. Code, § 14601.1); and receiving stolen property (Pen. Code, § 496, subd. (d)). Appellant contends the prosecutor’s use of a peremptory challenge to excuse an African-American prospective juror violated his constitutional rights. We will affirm.

II. FACTUAL AND PROCEDURAL BACKGROUND

On March 30, 2006, the Contra Costa County District Attorney filed an amended information charging appellant with driving under the influence of alcohol (Veh. Code, § 23152, subd. (a); count 1); driving while having a blood-alcohol level of 0.08 percent or higher (Veh. Code, § 23152, subd. (b); count 2); driving on a suspended or revoked license (Veh. Code, § 14601.1; count 3); and receiving stolen property (Pen. Code, § 496, subd. (d); count 4).

Pursuant to Penal Code section 995, the court dismissed charges of unlawfully driving or taking a vehicle (Veh. Code, § 10851, subd. (a)) and grand theft auto (Pen. Code, § 487, subd. (d), and ordered that the remaining counts be renumbered.

The facts underlying the dispute are not at issue. The following account is taken from the evidence at trial and the probation report.

On October 7, 2004, sheriff’s deputies stopped a Ford Explorer with no front license plate. Appellant was driving. The officers observed the smell of alcohol in the vehicle and on appellant’s breath and that appellant had red, watery eyes with droopy eyelids.

Appellant was subjected to a series of field sobriety tests, on which he performed poorly. He was placed under arrest and taken to the police station for the administration of breath tests, which showed an alcohol level above the legal limit. A records check showed that appellant had been driving with a suspended license.

On October 15, 2004, appellant went to the Orinda Police Department to retrieve some items of personal property that had been inside the Explorer. He did not have a photo ID and he was unable to provide the name of the Explorer’s registered owner. Appellant was directed to the tow yard, and while en route, the police conducted a records check on the Explorer’s vehicle identification number. The records check revealed that the registered owner was listed as Bryan Thompson and that the vehicle had been reported stolen to Hayward police in May 2002. The rear license plate on the Explorer, according to the DMV, was registered to one Amalia Moranas. Appellant was taken into custody at the tow yard.

The finance manager for Hayward Ford testified at trial that, in January 2002, appellant presented himself at the dealership as “Bryan Thompson,” gave her a check as a down payment for the Explorer, and left with the vehicle after completing the paperwork.

According to the probation report, sheriff’s deputies later learned from the Hayward police that the Explorer had been purchased on January 11, 2002, from Hayward Ford by an individual who used fraudulent identification to obtain the vehicle. Hayward Ford did not become aware of the fraud until May 14, 2002, at which time it reported the theft to the police.

The jury found appellant guilty on all four counts.

Appellant filed a timely notice of appeal on September 15, 2006.

III. DISCUSSION

Appellant contends that he was denied a fair trial because the prosecutor’s use of a peremptory challenge to excuse an African-American woman from the jury was based on impermissible group bias.

A. Legal Principles

The right to trial by a jury drawn from a representative cross-section of the community is guaranteed under article I, section 16, of the California Constitution. (People v. Wheeler (1978) 22 Cal.3d 258, 272 (Wheeler).) The federal Constitution’s equal protection clause affords similar protection. (Batson v. Kentucky (1986) 476 U.S. 79, 88 (Batson).) The right is violated when a prosecutor uses peremptory challenges to remove prospective jurors solely on the basis of group bias. (Wheeler, supra, 22 Cal.3d at p. 276.)

Recently, “‘the United States Supreme Court reaffirmed that Batson states the procedure and standard to be employed by trial courts when challenges such as defendant’s are made. “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 justification 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. Cornwell (2005) 37 Cal.4th 50, 66-67, quoting Johnson v. California (2005) 545 U.S. 162, 168, fn. omitted (Johnson).) The high court clarified that ‘a defendant satisfies the requirements of Batson’s first step by producing evidence sufficient to permit the trial judge to draw an inference that discrimination has occurred.’ (Johnson, supra, at p. 170, reversing in part People v. Johnson (2003) 30 Cal.4th 1302, 1318 [requiring the defendant to ‘show that it is more likely than not the other party’s peremptory challenges, if unexplained, were based on impermissible group bias’].)” (People v. Guerra (2006) 37 Cal.4th 1067, 1100 (Guerra).)

“In determining whether the defendant ultimately has carried his burden of proving purposeful racial discrimination, ‘the trial court “must make ‘a sincere and reasoned attempt to evaluate the prosecutor’s explanation in light of the circumstances of the case as then known, his knowledge of trial techniques, and his observations of the manner in which the prosecutor has examined members of the venire and has exercised challenges for cause or peremptorily . . . .’”’ (People v. Reynoso (2003) 31 Cal.4th 903, 919.) ‘[T]he trial court is not required to make specific or detailed comments for the record to justify every instance in which a prosecutor’s race-neutral reason for exercising a peremptory challenge is being accepted by the court as genuine.’ (Ibid.) Inquiry by the trial court is not even required. (Id. at p. 920.) ‘All that matters is that the prosecutor’s reason for exercising the peremptory challenge is sincere and legitimate, legitimate in the sense of being nondiscriminatory.’ (Id. at p. 924.) A reason that makes no sense is nonetheless ‘sincere and legitimate’ as long as it does not deny equal protection. (Ibid.)” (Guerra, supra, 37 Cal.4th at pp. 1100-1101.)

We review for substantial evidence the trial court’s ruling accepting a prosecutor’s reasons for challenging certain prospective jurors and finding that there was no purposeful discrimination. (Guerra, supra, 37 Cal.4th at p. 1104; People v. McDermott (2002) 28 Cal.4th 946, 971.) “We presume that a prosecutor uses peremptory challenges in a constitutional manner and give great deference to the trial court’s 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.]” (People v. Burgener (2003) 29 Cal.4th 833, 864 (Burgener).)

B. Voir Dire

After some initial questioning, the court excused five prospective jurors on its own motion, including one African-American woman. The prosecutor exercised her first two peremptories to excuse Juror No. 13 and Juror No. 17. Appellant used two peremptory challenges to excuse Juror No. 12 and Juror No. 20. Thereafter, the court seated five more prospective jurors in the jury box, including Juror No. 25. The court then questioned the five newcomers.

The race of the other four excused jurors is not noted in the record.

The court noted for the record that Juror No. 13 was Caucasian and Juror No. 17 was Hispanic.

The court asked Juror No. 25 about one of her responses on the juror questionnaire:

The Court: “Now you know somebody who has been a victim, witness or a defendant in a criminal matter. Who is that?

Juror No. 25: “I have a couple of cousins that were murdered.

The Court: “Oh, I am sorry to hear about that. That is pretty serious. When, how long ago?

Juror No. 25: “Victim of crimes.

The Court: “Right. How long ago did those unfortunate tragedies happen?

Juror No. 25: “Five, between five and three years ago.

The Court: “Okay. did anybody get caught or accused of doing these things?

Juror No. 25: “No.

The Court: “Do you have any complaints about the police departments involved or the way the investigations were handled?

Juror No. 25: “No.”

The prosecutor asked follow-up questions of Juror No. 25:

Prosecutor: “Thank you. Juror No. 25, you kind of shrugged your shoulders when asked about your husband and whether you thought the police or not are you, now are you satisfied with the police’s investigation in that case?

Juror No. 25: “Well it was my cousin, so their family really had, was satisfied I guess. I didn’t have any input in it.

Prosecutor: “And how close were you to your cousin?

Juror No. 25: “First cousins.

Prosecutor: “And was that up here?

Juror No. 25: “Yes.

Prosecutor: “So did your family keep you apprised of what was going on with the investigation or did they?

Juror No. 25: “Yeah, we talked.

Prosecutor: “And did it end up, did they find anybody, did they find a suspect or arrest anyone?

Juror No. 25: “No.

The prosecutor’s next two questions were directed to the five new prospective jurors, including Juror No. 25. Apparently, Juror No. 25 was the only juror to answer the second question.

Prosecutor: “Have you had, for all five of you, any lasting impression with a police officer that stuck out in your mind?

Jurors: “No.

Prosecutor: “Now if I prove my case beyond a reasonable doubt would you hesitate to vote guilty?

Juror [No. 25]: “I would listen to the case.”

C. The Motion

The prosecutor exercised her third peremptory challenge to excuse Juror No. 25. The defense made a motion pursuant to Batson and Wheeler, and the court took a recess to hear the motion out of the presence of the prospective jurors. The court noted that Juror No. 25 was an African-American woman and that appellant was “clearly dark skinned.” The court found that the circumstances gave rise to an inference of racial discrimination, and asked the prosecutor to explain her reasons for excusing Juror No. 25.

Prosecutor: “Well I will state for the record that there are a number of minorities on the jury panel and I passed, including Juror No. 2[,] I passed while she was up there. As we previously stated, she is an African-American woman or appears to be. [¶] My reasons for asking the court to excuse Juror No. 25 is one, she still has her Bluetooth on and she is very slow in all her answers and I, and I have concerns about this. And she, as I asked her she shrugged her shoulders when talking about whether or not she feels the police had done enough and was vague there. [¶] Additionally, when I asked her if she would hesitate to vote guilty if I prove my case beyond a reasonable doubt her answer was I would listen to the evidence. So I don’t think that she would be a strong prosecution witness -- or I mean juror. And it had nothing to do with her race.

Appellant’s counsel argued that there was no evidence that the Bluetooth was turned on and that wearing it was no different from having one’s cell phone in one’s lap; that Juror No. 25’s responses about her level of satisfaction with the police work in her cousins’ cases were essentially that she did not have enough information; and that her responses to the questions were consistent with the answers of other jurors. He stated that he did not think the prosecutor had any reason for excusing Juror No. 25.

The prosecutor responded: “I think that it doesn’t matter whether, whether the Bluetooth was engaged or not; the fact that it was on her head is disrespectful and like wearing headphones inside of a courtroom or sunglasses inside of a courtroom. And again, she was very slow in all her answers and I have concerns about the way her actual, the way she actually answered. [¶] The question I asked her is a yes or no question, if I prove to her my case beyond a reasonable doubt would you hesitate to vote guilty? And she clearly she would have hesitated on to vote guilty by her answer of I would, I would listen to all of the evidence.”

After hearing argument, the court ruled: “Counsel are allowed to use some feeling, some intuition, that hasn’t been taken away completely yet. And I think that given the fact that [the prosecutor] has only used two challenges. Prior to resting there is still a lot of more to make up in the panel, including another black woman. I think counsel is allowed to take appearances into effect. I think counsel is permitted to accept vagueness or quote slowness, unquote, however you want to verbalize a juror’s reaction or thinking in responding to a question which is difficult, which is difficult to show on the record, but I understand what you are talking about. And she [Juror No. 25] didn’t answer the final question, the final yes or no question definitively. I think that is enough to justify a race neutral use of the challenge.”

D. Substantial Evidence Supports the Trial Court’s Finding

Having reviewed the record, we conclude that substantial evidence supports the trial court’s finding that that Juror No. 25 was not excused on the basis of group bias against African-Americans. On its face, the prosecution’s justification is race-neutral, and the reasons cited are supported by the transcript of the hearing on the motion. The trial court evaluated the stated reasons, and found that the prosecutor challenged Juror No. 25 in good faith, for reasons not related to race. On this record, the prosecutor had reason to be skeptical that Juror No. 25 would be fair to the People. On this basis, the prosecutor was entitled to excuse her.

We reject appellant’s contention that the prosecutor’s stated reasons were not legitimate reasons for challenging Juror No. 25. Appellant first argues that the prosecutor’s reliance on the Bluetooth headset was a “sham excuse,” and that the trial court was in agreement on this point. Our reading of the record does not support this contention. The trial court’s responses of “[y]eah” and “[o]kay” during appellant’s counsel’s argument signified acknowledgement, not agreement. Appellant’s disagreement with the prosecutor over whether wearing a Bluetooth in court is disrespectful does not call into question the credibility of the prosecutor’s stated reasons for excusing Juror No. 25. (See People v. Jordan (2006) 146 Cal.App.4th 232, 255 (Jordan).)

Appellant’s remaining arguments that the prosecutor’s stated reasons for excusing Juror No. 25 are based on comparing Juror No. 25’s questionnaire and voir dire responses with those of other prospective jurors who were in the jury box at the time and who were eventually sworn to try the case. Appellant presents an array of comparisons in an attempt to show that Juror No. 25 was similarly situated to the others.

Other than broad statements to the effect that Juror No. 25’s responses were consistent with, and indistinguishable from, those of other prospective jurors, appellant did not conduct a comparative juror analysis in the trial court. We will address appellant’s argument as best we can in light of the fact that the record is inadequate. The only jurors whose presumed race was identified are Juror No. 2, Juror No. 13, Juror No. 17, and Juror No. 25. There is no evidence of the racial make-up of the panel of 48 jurors that was summoned, other than a comment by the prosecutor in the course of justifying her challenge to Juror No. 25 that “there are a number of minorities on the jury panel . . . .” There is no evidence of the race of any other prospective jurors who were excused, other than the three noted above. There is no evidence of the racial make-up of the prospective jurors who were seated in the jury box at the time Juror No. 25 was challenged. Appellant refers to “the retained White jurors,” in his opening brief on appeal, with a citation to a page of the clerk’s transcript that lists the jurors by number who were sworn to try to case, but clearly this is not evidence of any juror’s race. However, assuming, as the parties seem to, that Juror No. 25 was the only African-American juror in the jury box when she was excused, the claim lacks merit, as we will explain.

Prior to Miller-El v. Dretke (2005) 545 U.S. 231, in which the United States Supreme Court conducted a comparative juror analysis in the context of a federal habeas claim, California courts had refused to engage in comparative juror analysis for the first time on direct appeal. Since that decision, the California Supreme Court has undertaken such analysis assuming, without deciding, that comparative juror analysis on direct appeal is constitutionally required. (See, e.g., People v. Lewis and Oliver (2006) 39 Cal.4th 970, 1017; People v. Avila (2006) 38 Cal.4th 491, 546; People v. Huggins (2006) 38 Cal.4th 175, 232.) Accordingly, we will do the same. We note that on January 24, 2007, the Supreme Court granted review in People v. Lenix (S148029), to decide this issue.

Appellant dissects the prosecutor’s stated reasons, addressing them one at a time. He contends that the prosecutor’s reliance on Juror No. 25’s shrugging of her shoulders was “an insincere reason” because other jurors who were not excused also “expressed the similar gesture.” For comparison purposes, he describes several prospective jurors whose answer to a question was reported as “nods negatively.” This plainly is not a similar gesture. Nodding negatively to answer “no” to a question is distinctly different from shrugging one’s shoulders in conjunction with answering “no” to a question designed to elicit evidence of any bias toward the police.

Appellant also takes issue with the prosecutor’s description of Juror No. 25’s answers as being “vague” and “slow,” contending that her answers were “clear and unambiguous,” and no more vague or hesitant than those of numerous other prospective jurors Appellant has combed the record for examples in the transcript of what were, in his opinion, vague or hesitant answers. And finally, appellant cites examples of prospective jurors who were retained despite not answering either yes or no to questions designed to elicit a yes or no answer to counter the prosecutor’s complaint that Juror No. 25 did not answer directly the question of whether she would hesitate to vote guilty if the prosecutor proved the case beyond a reasonable doubt.

As examples of vague answers, appellant cites Juror No. 18, who answered “uh-huh” to the question of whether she could be fair if selected for the jury; and Juror No. 10 and Juror No. 15 who both explained to the court that a friend or family member had a DUI after having answered “no” to the question on the questionnaire regarding whether “you, a family member, or close friend [had] been a victim, witness or defendant in a criminal matter.” As examples of slow answers, appellant cites instances in which the court noted that Juror No. 1 “kind of hesitated,” when asked by the court if he could be fair and Juror No. 15 “hesitated a little bit” when answering no to the court’s question about whether he knew anyone that had a connection with this kind of case. Juror No. 15 then indicated his deceased brother, who had several DUI’s and had been an alcoholic.

As one example of other prospective jurors who did not give a yes or no answer in response to a yes-or-no question, appellant points to the testimony of Juror No. 6 who, in response to the court’s question whether his stolen-car incident “would hang over and influence you during our trial,” answered “Not necessarily.” Appellant also identifies Juror No. 9 who, in response to the court’s question of whether there was “[a]ny reason to believe [she] could not be fair and impartial if selected” as a juror, answered, “I think I could be.” Finally, appellant also cites Juror No. 24, who, along with Juror No. 25, was one of the five prospective jurors questioned together by the prosecutor, and was one of the four who did not answer the question at issue.

These comparisons fail to establish that any of the jurors was similarly situated to Juror No. 25. None of the other prospective jurors had family members who were victims of unsolved murders or other such violent crimes. Other prospective jurors who knew crime victims or themselves were crime victims were more forthcoming about their opinions of the police and law enforcement generally. Apparently, none of the other prospective jurors wore a Bluetooth headset or shrugged his or her shoulders while answering that he or she was satisfied with an inconclusive investigation. Appellant’s proffered analysis fails to demonstrate any purposeful discrimination.

In addition, appellant’s parsing of the prosecutor’s explanation entirely ignores the substance of the objection, as found by the trial court. As our colleagues in Division Four of this court recently stated in Jordan, “A prosecutor’s explanations need not rise to the level of justifying a challenge for cause. (Batson, supra, 476 U.S. at pp. 97-98; Wheeler, supra, 22 Cal.3d at pp. 274-276.) ‘Rather, adequate justification . . . may be 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 and not simply as a “mask for race prejudice” [citation].’ (People v. Williams (1997) 16 Cal.4th 635, 664.) It is important to remember the legitimate bases for peremptory challenges, which include various factors that suggest the possibility of pro-defense or pro-prosecution bias. ‘For example, a prosecutor may fear bias on the part of one juror because he has a record of prior arrests or has complained of police harassment, and on the part of another simply because his clothes or hair length suggest an unconventional lifestyle. In turn, a defendant may suspect prejudice on the part of one juror because he has been the victim of crime or has relatives in law enforcement, and on the part of another merely because his answers on voir dire evince an excessive respect for authority.’ (Wheeler, supra, 22 Cal.3d at p. 275.) As Wheeler elaborated, such factors may be less focused on the background or basic impression of a potential juror, but more commonly involve a ‘gut feeling’ or the seat-of-the-pants subjectivity of prosecutors and defense attorneys alike.” (Jordan, supra, 146 Cal.App.4th at p. 255.)

In making its ruling, the trial court acknowledged the difficulty of putting into words for the record the totality of factors that contribute to counsel’s conclusion that a juror is not favorable. In turn, we accord deference to the trial court’s findings concerning the sufficiency of the prosecutor’s stated reasons where, as here, the trial court has made a sincere and reasoned effort to evaluate the justification for the challenge. (Burgener, supra, 29 Cal.4th at p. 864; see also Miller-El v. Cockrell (2003) 537 U.S. 322, 339 [“‘As with the state of mind of a juror, evaluation of the prosecutor’s state of mind based on demeanor and credibility lies peculiarly within a trial judge’s province.’ [Citations.] [¶] Deference is necessary because a reviewing court, which analyzes only the transcripts from voir dire, is not as well positioned as the trial court is to make credibility determinations.”]

IV. DISPOSITION

The judgment is affirmed.

We concur: Lambden, J., Richman, J.


Summaries of

People v. Kinchen

California Court of Appeals, First District, Second Division
Mar 18, 2008
No. A115317 (Cal. Ct. App. Mar. 18, 2008)
Case details for

People v. Kinchen

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. KARL KINCHEN, Defendant and…

Court:California Court of Appeals, First District, Second Division

Date published: Mar 18, 2008

Citations

No. A115317 (Cal. Ct. App. Mar. 18, 2008)