Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County. No. F07300077 M. Bruce Smith, Judge.
Daniel G. Koryn, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Heather S. Gimle, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Wiseman, Acting P.J.
PROCEDURAL HISTORY
On August 1, 2007, the Fresno County District Attorney filed an information in superior court charging appellant Guillermo Maya with felony driving with a blood alcohol level of.08 percent or higher (Veh. Code, § 23152, subd. (b)), with multiple prior felony convictions (Veh. Code, § 23550.5)—count 1; felony driving under the influence of alcohol or drugs (Veh. Code, § 23152, subd. (a)), with multiple prior felony convictions (Veh. Code, § 23550.5)—count 2; driving with a suspended license following a prior driving-under-the-influence conviction (Veh. Code, § 14601.2, subd. (a))—count 3; and giving false information to a police officer (Pen. Code, § 148.9, subd. (a))—count 4. It also was alleged that Maya had served a prior prison term (Pen. Code, § 667.5, subd. (b)).
After Maya’s jury trial began, he pled guilty to counts 3 and 4. Ultimately, the jury returned verdicts finding Maya guilty as charged on counts 1 and 2. In light of Maya’s admission of a prior felony driving-under-the-influence conviction, the prosecutor declined to prove the truth of Maya’s multiple prior convictions under Vehicle Code section 23550.
The court denied Maya probation and sentenced him to a total term of four years in prison. The court imposed the upper term of three years on count 1 and an additional term of one year for the prior prison term.
FACTUAL HISTORY
Since the facts of Maya’s case are not at issue in this appeal, we take them from the probation officer’s report:
“On November 25, 2006 at approximately 11:30 p.m., California Highway [P]atrol officers were patrolling in the area of Oller and 4th [S]treet. They observed a vehicle that had front fog lights that were illumining blue, a traffic violation. A traffic stop was initiated. The driver drove the vehicle to [a] parking lot, but was unable to enter the blocked parking lot. The driver stopped partially on the sidewalk.
“One of the officers made contact with the driver, who was later identified as the defendant Guillermo Maya. Immediately the officer could smell the odor of an alcoholic beverage emitting from within the vehicle. The defendant’s eyes were red and watery. The officer asked the defendant for his driver’s license and the defendant gave him a Michoacán, Mexico driver’s license identifying the defendant as Jose Antonio Maya with a date of birth of July 21, 1978.
“The officer directed the defendant to exit the vehicle and walk to the patrol vehicle. The officer noticed as the defendant walked, he was unsteady on his feet. When the officer talked to him, he again noticed his eyes to be red and watery and he smelled of alcohol when he spoke. He slurred his words at times when he spoke.
“Field Sobriety Tests were administered, but he failed the tests. He was arrested. A driver’s license check showed that he did not [have a] driver’s license. He submitted to a breath test and the results were.12/.12%.
“The defendant was asked if he had been drinking and he said two beers. The defendant also could not provide proof of insurance and the registration on the vehicle had expired in September of 2005.
“The defendant was transported to Los Banos Police Department’s jail. On November 26, 2006, he had been identified through fingerprints as Guillermo Berber Maya with a date of birth of December 13, 1977. He was found to have a suspended driver’s license, and prior DUI convictions.”
DISCUSSION
I. Wheeler/Batson motion
Maya contends that the prosecutor used peremptory challenges to exclude minority members from the jury panel without race-neutral justifications, and the trial court erroneously denied his motion under People v. Wheeler (1978) 22 Cal.3d 258 and Batson v. Kentucky (1986) 476 U.S. 79.
Prospective Juror No. 4, an African-American male, testified he was a married Fresno resident who had three children between the ages of 15 and 24 and had worked for the Fresno Unified School District for 25 years. The prospective juror said he was now starting his own business and that his wife was a licensed vocational nurse. On voir dire by counsel, the prospective juror explained he had worked as a middle school plant coordinator or head custodian. He explained he was starting his own business as an automobile mechanic. Prospective Juror No. 4 said he had once received an undeserved ticket. The prospective juror explained that he was on his motorcycle and stopped at a light. He eventually accelerated and swerved to avoid being hit by a moving car coming from a side street. The juror said an officer cited him for speeding but the juror thought he really was stopped to see if he had a motorcycle license. The juror said he went to court and the charge was reduced. He explained, “I felt that I had some resolution, but I think it could have been better than what it was.” He did not think that personal experience would make him biased for the prosecution or defense in Maya’s case.
Prospective Juror No. 5, an Hispanic woman, said she was born and raised in Fresno, was unmarried and had no children, and was currently a full-time student working on a master’s degree in counseling and student services. She said her goal was to work in student counseling in the area of behavior management, and that she had worked with elementary students and would eventually work with students in grades kindergarten through 12.
Prospective Juror No. 15, an African-American woman, testified she was single, resided in Fresno with her five-year-old son, and worked for Comcast as a dispatcher. She subsequently said she was comfortable with the burden of proof beyond a reasonable doubt.
Prospective Juror No. 21, an Asian woman, said she had no bias with respect to those who drink. She also said she was married, lived in the Fresno area, had an 18-month-old son, and she was not working. The prospective juror indicated she and her husband were full-time students. She said she was taking general education courses and was planning on a nursing major. She also said her husband was a first-semester student and was planning to obtain a certificate in construction.
The prosecutor exercised his first peremptory challenge as to Prospective Juror No. 4 (the African-American male); his second as to Prospective Juror No. 5 (the Hispanic female); his third as to Prospective Juror No. 15 (the African-American female); and his fourth as to Prospective Juror No. 21 (the Asian female). After the exercise of the fourth peremptory challenge, defense counsel made a Batson/Wheeler motion, claiming—in the words of the trial court—that the prosecution was “excluding or exercising peremptory challenges on minorities in general as opposed to a specific group.” In response to the motion, the court acknowledged that the prosecutor had peremptorily challenged “two African Americans, one individual with a Hispanic last name, and one person of apparent Southeast Asian extraction.” The court said it did not see a systematic exclusion of any one particular nationality and noted “other minorities still remaining on the panel.” The court tentatively concluded that the defense had not made a prima facie showing of purposeful discrimination. Nevertheless, the court invited comment by the prosecutor.
The prosecutor observed:
“First and foremost, I’d like to point out that defense counsel has also kicked off two minorities.…
“Secondly, with respect to [Prospective Juror No. 4], the first person who the People used their peremptory challenge on. [Prospective Juror No. 4] had stated that he contested a traffic ticket, that he was not entirely satisfied with the results of that contested traffic ticket. And the People kicked him for that reason because of his dissatisfaction with the law enforcement and process with his traffic ticket.
“Next, [Prospective Juror No. 5]. She was a single student working on her Master’s in counseling and student services. She’s a school counselor working on behavior management starting with elementary school students. It is the People’s belief that she may be, because of her chosen profession, overly sympathetic and not able to appropriately evaluate the facts. And that is why the People used our peremptory challenge on [Prospective Juror No. 5].
“[Prospective Juror No. 21] was married with a one-and-a-half-year-old son. She’s a student planning on majoring in nursing. Given her background, the People also feel that she may be overly sympathetic and may—even though she did say she hadn’t had classes in blood work, she did say that she was planning on majoring in nursing. And in terms of her—her overall choice of profession, the People felt that she would be—not—her choice of profession, coupled with the fact that she is still a student with a husband in school as well, we just thought that—excuse me, I thought that she would be inappropriate for this jury and would be sympathetic to the defendant.
“[Prospective Juror No. 15] is a school teacher. Also working at Comcast. Based on the fact that she is—was a school teacher, I felt that she may also be overly sympathetic to the defendant, as well as the fact that I did notice her smiling at defense counsel and she was not smiling at me. Indeed I noticed that she was frowning at me, so I kicked her on that basis.”
In response, defense counsel renewed his motion and observed that the panel as then composed included a nonminority nurse and a nonminority professor. He maintained that the prosecutor was focused on excusing jurors who were members of minority groups. The court denied the motion, ruling:
“The Court’s ruling stands. I do not find a prima facie case having been demonstrated at least as of this point. The four … peremptory challenges have been utilized. All challenges have been utilized against minority members of the panel.… The Court will certainly reconsider its ruling in the event that further evidence is presented in terms of an exclusion of a cognizable group.”
When jury selection resumed, the defense exercised a peremptory challenge as to Prospective Juror No. 39. The prosecutor exercised a peremptory challenge as to Prospective Juror No. 17, and defense counsel exercised a peremptory challenge as to Prospective Juror No. 24, a female. The prosecutor then passed and defense counsel excused Prospective Juror No. 26, a Hispanic female. After the court called and examined additional jurors, the prosecutor again passed and defense counsel excused Prospective Juror No. 11, a male. The prosecutor passed again and the defense excused Prospective Juror No. 6, a female who may have been Hispanic. The prosecutor passed again and the defense counsel excused Prospective Juror No. 29, a male. The prosecutor then excused Prospective Juror No. 30, a female. The court conducted a conference at the bench and then announced that the jury for the case had been selected. During a subsequent break in the proceedings, the court stated to the prosecutor outside the presence of the jury: “I invited your comments … despite the fact that I had not found a prima facie case. I was inviting your comments in the event that a power above us determined that there was.”
We have taken the relevant prospective juror numbers from the superior court’s November 6, 2007, “Case Information Sheet—Random.”
The use of peremptory challenges to remove prospective jurors on the sole ground of group bias violates the right to trial by a jury drawn from a representative cross-section of the community under article I, section 16, of the California Constitution (People v. Wheeler, supra, 22 Cal.3d at pp. 276-277), as well as the equal protection clause of the Fourteenth Amendment to the United States Constitution. (Batson v. Kentucky, supra, 476 U.S. at p. 89; People v. Burgener (2003) 29 Cal.4th 833, 863.) The exclusion by peremptory challenge of a single juror on the basis of race or ethnicity is an error of constitutional magnitude requiring reversal. (People v. Silva (2001) 25 Cal.4th 345, 385-386.)
A party who suspects improper use of peremptory challenges must raise a timely objection and make a prima facie showing that one or more jurors has been excluded on the basis of group or racial identity. Once a prima facie showing has been made, the prosecutor then must carry the burden of showing that he or she had genuine nondiscriminatory reasons for the challenge at issue. (People v. Jenkins (2000) 22 Cal.4th 900, 993.) At that point, the trial court must decide whether the opponent of the strike has proved purposeful discrimination. (People v. McDermott (2002) 28 Cal.4th 946, 971.)
The trial court’s ruling on this issue is reviewed for substantial evidence and with great restraint. (People v. McDermott, supra, 28 Cal.4th at p. 971.) We presume a prosecutor uses peremptory challenges in a constitutional manner and gives great deference to the trial court’s ability to distinguish bona fide reasons from sham excuses. If the trial court makes a sincere and reasoned effort to evaluate the nondiscriminatory justifications offered, its conclusions are entitled to deference on appeal. (People v. Burgener, supra, 29 Cal.4th at p. 864.) In carrying out this obligation, the trial court is not required to make specific or detailed comments for the record to justify every instance in which a prosecutor’s nondiscriminatory reason for exercising a peremptory challenge is being accepted by the court as genuine. This is particularly true where the prosecutor’s nondiscriminatory reason for exercising a peremptory challenge is based on the prospective juror’s demeanor. (People v. Reynoso (2003) 31 Cal.4th 903, 919.)
On appeal, Maya contends that the peremptory challenge of four minority jurors was sufficient to establish a pattern of systematic exclusion and, as a result, the trial court erroneously denied his Wheeler/Batson motion. The California Supreme Court has encouraged trial courts to ask prosecutors to give explanations for contested peremptory challenges, even in the absence of a prima facie showing. (People v. Bonilla (2007) 41 Cal.4th 313, 343, fn. 13.) When, as here, the trial court 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 of whether a prima facie case has been made is not moot. Nor is a finding of a prima facie showing implied. Under such circumstances, the reviewing court sustains the trial court if, upon independent review of the record, it concludes the totality of the relevant facts does not give rise to an inference of discriminatory purpose. (People v. Howard (2008) 42 Cal.4th 1000, 1018, 1020.)
To establish a prima facie case, a defendant should first make as complete a record as possible. Second, a defendant must establish that the persons excluded are members of a cognizable group. Third, a defendant must show a strong likelihood or reasonable inference that the persons are being challenged because of their group association. (People v. Farnam (2002) 28 Cal.4th 107, 134-135.) A group is cognizable if its members share a common perspective arising from life experience in the group, and no other members of the community can adequately represent the perspective of the group. (People v. Cervantes (1991) 233 Cal.App.3d 323, 334.)
Prospective Juror Nos. 4 and 15 were African-American, Prospective Juror No. 5 was Hispanic, and Prospective Juror No. 21 was Asian. Although they were members of three distinct groups, they did not necessarily share a common perspective arising from life experiences (aside from Juror Nos. 4 and 15). Although the exclusion of a single prospective juror may be the product of an improper group bias, as a practical matter the challenge of one or two jurors, standing alone, can rarely suggest a pattern of impermissible exclusion. (People v. Bonilla, supra, 41 Cal.4th at p. 343; People v. Howard, supra, 42 Cal.4th at p. 1018, fn. 10.)
Further, the prosecution offered race-neutral reasons for excusing the four prospective jurors. Prospective Juror No. 4 described the citation he received while driving a motorcycle and his dissatisfaction with its resolution. A prospective juror’s negative experiences with law enforcement can serve as a valid basis for a peremptory challenge. (People v. Gutierrez (2002) 28 Cal.4th 1083, 1125.) The prosecutor excused Prospective Juror No. 15 in the mistaken belief she was a teacher. Prosecutors often exercise peremptory challenges against members of the teaching profession in the belief they are liberal in outlook. (People v. Barber (1988) 200 Cal.App.3d 378, 394.) Further, the prosecutor noted that Prospective Juror No. 15 smiled at defense counsel but frowned at her. A prosecutor can lawfully peremptorily excuse a potential juror because he or she observed the potential juror glare at the prosecution or smile at the defense. (People v. Reynoso, supra, 31 Cal.4th at pp. 924-925.) In any event, the trial court observed that Prospective Juror No. 21, an African-American woman, had been seated and was ultimately sworn as a juror.
The prosecutor excused Prospective Juror No. 5 on the ground she was working on a graduate degree in counseling and student services, could be overly sympathetic to the defense, and might not be able to evaluate the facts. Courts have deemed a peremptory challenge to a prospective juror with a background in psychiatry or psychology to be race-neutral. (People v. Landry (1996) 49 Cal.App.4th 785, 790.) The prosecutor excused Prospective Juror No. 21 because she was planning to become a nurse and could be “sympathetic” to the defense case. A prosecutor may challenge a potential juror whose occupation, in the prosecutor’s opinion, would not render him or her the best type of juror to sit on the case for which a jury is being selected. (People v. Reynoso, supra, 31 Cal.4th at pp. 924-925.)
The record demonstrates that the trial court elicited at least one legitimate race-neutral explanation for each questioned peremptory challenge. As a result, no abuse of direction has been shown, and Maya’s contention must be rejected. (People v. Pride (1992) 3 Cal.4th 195, 230.)
II. Imposition of the upper term
Maya contends that his upper-term sentence on count 1 violated his federal constitutional rights because the aggravating circumstances were not found true by a jury or proven beyond a reasonable doubt pursuant to Cunningham v. California (2007) 549 U.S. 270 (Cunningham).
On March 26, 2008, the trial court conducted a sentencing hearing and imposed the upper term of three years on count 1. The court stated: “This is based on [Maya’s] inability—inability to successfully complete any of his prior grants of probation and/or parole.” On appeal, Maya submits that the court’s reasons for the upper term were flawed and maintains he had the right to have any aggravating sentencing factors found by a jury beyond a reasonable doubt.
In Cunningham, the United States Supreme Court held that California’s determinate sentencing law (DSL) violated the due-process rights of defendants sentenced to an upper term on the basis of circumstances in aggravation found by a judge and established by a preponderance of the evidence. The United States Supreme Court ruled that, except for a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt. (Cunningham, supra, 549 U.S. at p. 868.) Subsequent to the decision in Cunningham, the California Supreme Court held the aggravating circumstance that a defendant served a prior prison term or was on probation or parole at the time the crime was committed may be determined by a judge and need not be decided by a jury. In addition, the aggravating circumstance that a defendant’s prior performance on probation or parole was unsatisfactory may be determined by a judge, if that determination is based upon the defendant’s record of one or more prior convictions. (People v. Towne (2008) 44 Cal.4th 63, 70-71, 82.)
At sentencing, defense counsel acknowledged “this was misdemeanant conduct made a felony by Mr. Maya’s prior record. And as the probation report notes, he does have numerous prior DUI’s.” The probation report included Maya’s 1998 conviction for possession of a controlled substance (Health & Saf. Code, § 11350, subd. (a)), and numerous convictions of alcohol-related vehicular offenses between 2001 and 2004. The report also commented that Maya’s prior performance on probation or parole was unsatisfactory given his failure on parole and previous “misdemeanor grants of probation.” The probation officer’s report, combined with defense counsel’s acknowledgment of his client’s “numerous prior DUI’s,” formed an ample basis from which the trial court could conclude that Maya’s prior performance on probation or parole was unsatisfactory. The trial court did not err in imposing the upper term.
The California Legislature amended Penal Code section 1170 (determinate sentencing) effective March 30, 2007 (Stats. 2007, ch. 3, §§ 1, 2, 6, 7). Maya’s offenses occurred on November 25, 2006. The Judicial Council amended its sentencing rules to conform to the new version of the DSL. Those amended rules require trial courts to specify reasons for a sentencing decision but do not require the court to cite “facts” that support this decision or to weigh aggravating and mitigating circumstances. The amended sentencing scheme affords the trial court broad discretion, and a sentencing decision is subject to review for abuse of that discretion. (People v. Sandoval (2007) 41 Cal.4th 825, 846-848.) Application of the amended sentencing scheme to defendants whose crimes were committed prior to the date of the Sandoval decision (filed July 19, 2007) does not violate the ex post facto clause of the United Stated Constitution. (People v. Sandoval, supra, at pp. 853-857.) Since under the new law the upper term is simply the maximum in a range of available sentences, the trial court was permitted to consider any relevant sentencing factors in the exercise of its discretion, including Maya’s priors, without violating Cunningham. (People v. Sandoval, supra, at pp. 843-852.) Here, the trial court complied with the requirements of the amended DSL when it imposed the upper term.
III. Amending the abstract of judgment
Maya contends and the People concede that the abstract of judgment should be corrected to delete an erroneous reference to a “two strike” sentence. As the People point out, the error occurred when someone made a “mark in box number 4 signifying that [Maya] is serving a ‘two strikes’ sentence.” The trial court is directed to amend the abstract of judgment to delete all references to a “two strikes” sentence and to transmit certified copies of the amended abstract to the appropriate authorities.
DISPOSITION
The judgment is affirmed. The trial court shall amend the abstract of judgment to delete all references to a “two strikes” sentence and transmit certified copies of the amended abstract to the appropriate authorities.
WE CONCUR: Gomes, J., Dawson, J.