Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of San Bernardino County. Mary E. Fuller, Judge, No. FWV040021
James M. Crawford, under appointment by the Court of Appeal, for Defendant and Appellant Nicole Danielle Love.
Jeffrey S. Kross, under appointment by the Court of Appeal, for Defendant and Appellant Zenitra Vorez Crawford.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Barry Carlton and Elizabeth A. Hartwig, Deputy Attorneys General, for Plaintiff and Respondent.
MILLER, J.
A jury convicted defendants Nicole Danielle Love and Zenitra Vorez Crawford of assault by means likely to produce great bodily injury (Count 1—Pen. Code, § 245, subd. (a)(1)). On appeal, defendants contend the trial court erred in denying their Wheeler/Batson motions. We hold substantial evidence supports the trial court’s ruling and, therefore, affirm the judgment in full.
All further statutory references are to the Penal Code unless otherwise indicated.
People v. Wheeler (1978) 22 Cal.3d. 258 (Wheeler); Batson v. Kentucky (1986) 476 U.S. 79 (Batson).
FACTUAL AND PROCEDURAL HISTORY
A. Facts
On December 12, 2006, the Hispanic victim left work to pick up some food for herself and some coworkers. She drove into the parking lot of a supermarket located across the street from her work. The car in front of her came to a sudden stop, forcing her to slam on her brakes. The car remained stopped long enough for cars behind the victim to start backing up. The victim drove around the stopped car, honked her horn, waved at them, and told them to “[m]ove the fuck over.” The driver of the stopped vehicle was defendant Love. Defendant Crawford was another occupant. One other woman was also in the car. All three women were African-American. Defendant Love and her sister testified that the victim referred to them with racial epithets. The victim then drove past their car to look for a place to park.
The victim parked her car. As she prepared to exit the vehicle, she noticed that the stopped car had pulled into the adjacent parking space on her left. All three of the vehicle’s occupants began yelling at her. She exited her car and yelled back. She began walking backwards towards the supermarket because she wanted to be near people; the three women looked “really angry” and the victim felt physically intimidated.
Love reached into her car, grabbed a bottle full of liquid, and threw it at the victim. The bottle hit the victim in the head. Another one of the women came towards the victim and snatched her keys away from her. The victim yelled at the women to return her keys and kicked Love’s vehicle. The woman who had taken the victim’s keys then hurled them somewhere in the parking lot.
Love walked up to the victim, told her she had “made a big mistake bitch,” informed her she was going “to kick [her] ass now,” and punched her in the face. Another one of the women also punched her in the head, causing her to fall to the ground. While the victim was on the ground, all three women began punching and kicking her for one to two minutes. The victim lost consciousness. When she awoke, the three women had already reentered Love’s vehicle and were circling around her. They were taunting her yelling “[t]hat’s what you get, bitch.”
The victim sustained injuries to her head and her left eye was swollen nearly shut, also her left side and legs were bruised. She originally refused to take an ambulance to the hospital due to the projected cost. However, she later received treatment in a hospital emergency room and missed “about a week” of work.
B. Jury Voir Dire
During the jury voir dire, Juror No. 31 stated that she had previously participated on two civil juries and one criminal jury. When asked whether the civil juries had arrived at verdicts, she replied that they had, but that “this [sic] was split.” The court clarified, “[i]t was split.” The criminal jury had reached a unanimous verdict. The criminal trial occurred over 20 years earlier. Juror No. 31 informed the court that she had a good friend who previously worked at the court as a defense attorney.
We realize, of course, that since the criminal jury had reached a verdict it was necessarily “unanimous.” We merely use the term in relation to the civil jury or juries on which Juror No. 31 had served that had not reached unanimous verdicts.
Upon examination by the prosecutor, Juror No. 31 stated that her most recent jury experience occurred seven years earlier. The prosecutor asked her if in “some of your civil cases, it was a unanimous verdict?” She replied, “Yes.” The prosecutor then asked whether she was in the majority or minority on those cases. Juror No. 31 replied that she was in the majority. Juror No. 31 indicated she understood that in a criminal case a unanimous decision is required to render a verdict. She stated that she could remain open-minded and would be willing to change her position if convinced. The People passed on Juror No. 31 for cause and twice accepted the panel as constituted with Juror No. 31.
The most obvious interpretation of Juror No. 31’s answers to the court’s and prosecutor’s questions is that she had previously served on two civil juries, one that came to a unanimous verdict and the other, which came to a “split” verdict.
Juror No. 47, an African-American, informed the court that his brother had been arrested for “various different crimes.” He stated that he had never gone to court with his brother on any occasion and he believed that his brother had been treated fairly. He did not believe that his brother’s circumstances would impact his “ability to be a fair and impartial juror.” Juror No. 47 stated that he had served on a jury before in a medical malpractice case. The jury had reached a split verdict. He indicated that he understood that in a criminal case a verdict could not be reached unless all the jurors arrived at the verdict.
The prosecutor asked Juror No. 47 if he remembered any specific instance where his brother was not treated fairly by the police. Juror No. 47 replied, “[w]e don’t really talk about it too much.” The prosecutor asked if it was because they were not that close. Juror No. 47 replied, “[w]e are pretty close, but we don’t discuss that.” He stated that he believed his brother was “probably at fault.” The prosecutor suggested that the reason they did not discuss it was because Juror No. 47 did not wish to put is brother “in an awkward position at the dinner table.” Juror No. 47 agreed.
The prosecutor asked Juror No. 47 how long ago he had served on the civil jury and he replied that it had been approximately three years. Juror No. 47 indicated that he was in the minority on the split jury and that the jury had deliberated for three to four days. When the prosecutor suggested that the split was nine and three, or ten and two, Juror No. 47 agreed it was “[s]omething like that.” The prosecutor then stated, “[o]bviously we talked about if you could be the eleven to one, you’re the one. And that’s fine. In that case, it happened. In this case, it could happen.” When the prosecutor asked Juror No. 47 if he could “keep an open mind throughout deliberations,” he responded that he could. The prosecutor then suggested that if Juror No. 47 were in the minority, he would then try to convince the majority that they were wrong and he was right. Juror No. 47 replied that “[i]t was... a difficult case. And the circumstances, a lot of the jurors didn’t really want to really deliberate, which kind of disturbed me. And I just wanted to be open and discuss all the issues. And we had a lot of jurors that had time constraints and they wanted to just basically go.” The prosecutor suggested that the process “just didn’t work as smoothly as [he] would like[.]” Juror No. 47 agreed. Nevertheless, Juror No. 47 felt his mind was open the entire time. The People passed on Juror No. 47 for cause.
The People then exercised a peremptory challenge to Juror No. 31. At their next opportunity, they excused Juror No. 47. Love’s defense counsel immediately moved for mistrial based on Wheeler/Batson error. He argued that “[e]ven though there has only been one person of African-American descent [that] has been preempted from the jury by the prosecution, both defendants are African-American and this particular juror, 47[] gave no answers that would tend to make someone think that he would be unfair. I asked him specifically, given any race issues, could he be fair to both sides of the trial. He said yes, Your Honor.... I think the prima facie case has been made that he was exclude[d] because of race. I think the burden shifts to the prosecution.” Defendant Crawford’s counsel joined in the motion.
The court permitted the prosecutor to make a few remarks regarding whether a prima facie showing had been made. The prosecutor responded that Juror No. 47 was the only African-American who had been challenged and that he was not the only African-American on the panel. The court determined that defendants had made a prima facie showing: “[Juror No.] 47[]’s answers to the questions did not immediately strike this court as suggesting any particular reason for the excuse by you.... The court then permitted the People to justify their dismissal of Juror No. 47.
The People responded that Juror No. 47’s brother had “been arrested and convicted of several charges.” The prosecutor stated that Juror No. 47 appeared to be “holding back” because he had stated that he was very close with his brother, but had no information regarding the nature of his brother’s arrests. However, according to the People, their “main problem” with Juror No. 47 was his prior jury experience: “It was a civil matter. It was a split verdict. He was in the minority. And he said they deliberated several days and he was sort of judgmental of the other jurors because they were not deliberating as he had thought was proper....” The prosecutor reminded the court that he had removed Juror No. 31 for similar reasons, i.e., “civil split verdict experience.” He noted, however, that Juror No. 31’s experience was not as bad because she was in the majority, while Juror No. 47 was in the minority: “He held out. Obviously [I] have a concern of possibly a hung jury. I am not really worried about a not guilty. So for those reasons.”
The court was satisfied that the People’s reasons were proper, race-neutral bases for excusing Juror No. 47 and, therefore, denied defendants’ motions. Defendant Love’s counsel stated for the record that he believed Juror No. 47’s recount of his juror experience reflected precisely what jurors are supposed to do. Defendant Crawford’s counsel suggested that the real reason the People excused Juror No. 31 was that she was close friends with a defense attorney; thus, the People’s comparison of the two was inapt. Nevertheless, the trial court affirmed its original ruling.
DISCUSSION
“Both the state and federal Constitutions prohibit the use of peremptory challenges to remove prospective jurors based solely on group bias. [Citations.]” (People v. Watson (2008) 43 Cal.4th 652, 670.)
“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 strike[]. [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.]” (People v. Bonilla (2007) 41 Cal.4th 313, 341, quoting Johnson v. California (2005) 545 U.S. 162, 168.)
If the trial court concludes that the defendant has made a prima facie case, and if the prosecutor offers a race-neutral justification, “‘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....’ [Citation.]”’ [Citation.]” (People v. Watson, supra, 43 Cal.4th at p. 670.) “‘[T]he critical question... is the persuasiveness of the prosecutor’s justification for his peremptory strike.’ [Citation.] The credibility of a prosecutor’s stated reasons for exercising a peremptory challenge ‘can be measured by, among other factors... how reasonable, or how improbable, the explanations are; and by whether the proffered rationale has some basis in accepted trial strategy.’ [Citation.]” (People v. Lewis (2008) 43 Cal.4th 415, 469.) “‘The justification need not support a challenge for cause, and even a “trivial” reason, if genuine and neutral, will suffice.’” (People v. Lenix (2008) 44 Cal.4th 602, 613.) “Review of a trial court’s denial of a Wheeler/Batson motion is deferential, examining only whether substantial evidence supports its conclusions.” (Ibid.)
Where conflicting inferences may be drawn from the evidence presented below, we do not reweigh the evidence to determine which is stronger; rather, if the trial court’s inference is supported by substantial evidence, we must uphold its judgment. (People v. Bean (1988) 46 Cal.3d 919, 932-933.) Here, substantial evidence supports the trial court’s determination that the People’s excusal of Juror No. 47 was properly motivated by trial tactics and not impermissible group bias. The court’s restatement of the prosecutor’s concern that Juror No. 47 was less than forthcoming regarding the circumstances of his brother’s arrests supports its determination of the reason’s validity: “As [the prosecutor] pointed out there was information provided by [Juror No.] 47[] that his brother had been arrested on several occasions, yet even being close, he did indicate that he knew nothing about what those charges were.” The court obviously believed that this was a suitable rationale for dismissing Juror No. 47. Substantial evidence supports that determination.
Even so, the prosecutor’s primary stated objection to Juror No. 47 was his prior experience on a split jury in which he was in the minority. Defendants contend that the prosecutor desired Juror No. 47’s dismissal based solely on his race; that this was the prosecutor’s intention as soon as he finished examining Juror No. 47. Thus, defendants contend that in order to dissipate any suspicion that the prosecution was using group bias to exclude Juror No. 47, the prosecutor elected to excuse Juror No. 31 prior to Juror No. 47 on the basis of her previous experience on a jury which rendered a split verdict. This, defendants maintain, would provide the prosecution with “cover” for excusing Juror No. 47. However, since the prosecutor had previously passed on Juror No. 31 and twice accepted the jury as constituted with Juror No. 31, defendants argue that the prosecutor’s stated reasoning was clearly a smokescreen. Defendant Love further argues that the prosecutor’s real reason for dismissing Juror No. 31 was that she was close friends with a defense attorney.
Substantial evidence supports the prosecutor’s primary stated reason for dismissing Juror No. 47 as a valid, non-discriminatory purpose. While the prosecutor did remind the court that he had dismissed Juror No. 31 for “comparable reasons,” he also noted that Juror No. 31’s experience was not as bad as Juror No. 47 because she was in the majority of the split verdict while Juror No. 47 was in the minority. Indeed, when questioned further, Juror No. 47 stated that he had been concerned when he served on the previous jury because he believed that the majority did not want to deliberate and simply wanted to leave as soon as possible. Nonetheless, Juror No. 47 stated that the jury had deliberated for three to four days. Moreover, the prosecutor had essentially asked if Juror No. 47 was the type of person who, if he found himself in the minority, would attempt to bully the rest of the jury into seeing things his way, i.e., the “right” way. Thus, the prosecutor’s questions and Juror No. 47’s answers support the prosecutor’s stated concern that he was worried about Juror No. 47 causing a hung jury. The answers provided by Juror No. 47 also supported the prosecutor’s apprehension that Juror No. 47 was judgmental of the other jurors, a problem that could clearly carry over into the present case.
Finally, defendant Love contends that the prosecutor’s real reason for dismissing Juror No. 31 was that she was friends with a defense attorney. An attorney can have multiple, variously weighted reasons for excusing a juror. Thus, both Juror No. 31’s friendship with the defense attorney and her service on a split jury could have affected the prosecutor’s decision to excuse her. Moreover, the prosecutor’s initial acceptance of the jury with Juror No. 31 does not compel the conclusion that his subsequent challenge to Juror No. 31 was motivated by a desire to provide a ruse for excusing Juror No. 47. Rather, in the dynamic flux of the jury panel’s constitution, minor issues with a juror which appeared acceptable at one point may not appear so at another. Here, one juror had been excused by the defense and one juror was added to the panel subsequent to the People’s last acceptance of the jury as constituted with Juror No. 31. Thus, substantial evidence supports the trial court’s ruling that the People were exercising their challenge in a permissible manner.
DISPOSITION
The judgment is affirmed.
We concur: RAMIREZ, P. J., HOLLENHORST, J.