Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County. Super. Ct. No. BF120022A Lee Phillip Felice, Judge.
John Steinberg, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Catherine Chatman and R. Todd Marshall, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Vartabedian, Acting P.J.; Levy, J.; and Cornell, J.
INTRODUCTION AND GENERAL FACTS
Appellant Glenn Murphy and Sang Salee were cellmates at Kern Valley State Prison. Salee was found dead in their cell on November 22, 2007. The pathologist concluded that Salee was killed by manual strangulation with prone positioning. Appellant admitted during an interview with an institutional investigator that he killed Salee during an argument. Appellant said that Salee hit him in the mouth and he responded by grabbing Salee around the neck with both hands and lifting him into the air. Appellant said that he “blanked out” at this point. When he “came back through,” Salee had stopped moving. Appellant threw Salee down and he fell onto the bottom bunk.
Appellant was convicted of second degree murder after jury trial; the court found true special allegations that appellant had suffered two prior strikes, two prior serious felony convictions and served five prior prison terms. (Pen. Code, §§ 187, subd. (a); 667, subds. (a)-(e); 667.5, subd. (b); 1170.12.) He was sentenced to 45-years-to-life imprisonment plus 12 years. This term was ordered to run consecutive to the term imposed in another case.
Appellant argues the trial court erred by denying his Wheeler motion and that the prosecutor committed misconduct. Neither contention is persuasive; we will affirm.
People v. Wheeler (1978) 33 Cal.3d 258 (Wheeler). An objection under Wheeler is sufficient to preserve a claim under the federal Batson v. Kentucky (1986) 476 U.S. 79 (Batson) standard. (People v. Lenix (2008) 44 Cal.4th 602, 610, fn. 5 (Lenix).)
DISCUSSION
I. The Wheeler motion was properly denied.
A. Facts
Both sides were allotted 20 peremptory challenges.
Appellant is African-American.
Prospective juror number 1272931 is African-American. He/she is divorced and is the single parent of two teenagers. He/she is employed as an escrow assistant and has lived in Bakersfield for eight years. In response to questioning by the court, this prospective juror stated that his/her brother is a correctional officer and that he/she is close friends with some of his/her brother’s coworkers. In response to questioning by the court, he/she said that these relationships would not influence him/her and that he/she could judge the credibility of correctional officers the same as he/she could judge the credibility of any other witness.
After some other prospective jurors were excused, the court directed prospective juror number 1272931 to move to juror seat number 7. He/she asked, “This one right here?” The court responded affirmatively.
The prosecutor used his fourth peremptory challenge to excuse prospective juror number 1272931. Defense counsel objected on the basis of Wheeler because he/she was the only African-American juror on the panel so far (the Wheeler motion). The court asked the prosecutor why he excused this prospective juror. The prosecutor replied, “My observations of [this prospective juror were that he/she] seemed bored. [He/she] wasn’t paying attention. I did not get the impression [he/she] would be a juror who would listen to all the evidence and pay proper attention and be able to deliberate. That’s why I excused [him/her].”
The court denied the Wheeler motion.
After a recess, defense counsel asked to place her observations on the record. She stated that prospective juror number 1272931 was the only African-American on the panel and the prosecutor did not ask him/her any questions. Also, defense counsel thought that all the jurors looked bored and disinterested.
The court said that it did not agree with defense counsel’s assertion that all of the prospective jurors seemed disinterested or bored. It accepted the prosecutor’s “representation as to his observation of this particular juror” and accepted the prosecutor’s “representation as to the reasons for his excluding the juror.”
Then the prosecutor stated that there were other African-Americans in the panel.
A jury was selected that day. The prosecutor used 12 peremptory challenges and defense counsel used 14 peremptory challenges. After exercising one peremptory challenge each, both sides accepted two alternate jurors.
After the jury was released for the evening, defense counsel stated that there was only one other person with a dark complexion in the jury panel. The court replied, “My ruling remains the same. If I felt that [the prosecutor’s] explanation was not a credible explanation I would have struck the panel, but I didn’t; so the [Wheeler] motion is denied.”
B. The applicable three-step inquiry is well-established.
An advocate’s use of peremptory challenges to exclude prospective jurors based on race violates the equal protection clause of the United States Constitution and 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. (Lenix, supra, 44 Cal.4th at p. 612.)
When a Wheeler objection is asserted, the following three-step inquiry is to occur:
“First, the trial court must determine whether the defendant has made a prima facie showing that the prosecutor exercised a peremptory challenge based on race. Second, if the showing is made, the burden shifts to the prosecutor to demonstrate that the challenges were exercised for a race-neutral reason. Third, the court determines whether the defendant has proven purposeful discrimination. The ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike.” (Lenix, supra, 44 Cal.4th at pp. 612-613.)
Appellate review of a trial court’s denial of a Wheeler motion is deferential. Great restraint is exercised when reviewing the trial court’s determination concerning the sufficiency of the prosecutor’s justifications for exercising a peremptory challenge. We presume that the prosecutor used his or her peremptory challenges in a constitutional manner and we defer to the trial court’s ability to distinguish bona fide reasons from sham excuses. (Lenix, supra, 44 Cal.4th at pp. 613-614.) “So long as the trial court makes a sincere and reasoned effort to evaluate the nondiscriminatory justification offered, its conclusions are entitled to deference on appeal.” (People v. Burgener (2003) 29 Cal.4th 833, 864.) A trial court’s ruling on the issue of discriminatory intent will be upheld unless it is clearly erroneous. (Snyder v. Louisiana (2008) 522 U.S. __, __ [128 S.Ct. 1203, 1207].)
C. The prosecutor stated a race-neutral reason for exercising this preemptory challenge and the court’s finding that this reason was credible is reasonable and entitled to deference.
Appellant argues the prosecutor’s explanation that prospective juror 1272931 seemed bored and was not paying attention was insufficient to rebut the presumption of racial discrimination. He contends that the prosecutor’s proffered reason was not credible because he failed to individually question this prospective juror and there is nothing in the record suggesting that he/she was not paying attention and appeared bored. We are not persuaded.
Peremptory challenges properly may be based on the demeanor of the prospective juror. (People v. Davenport (1995) 11 Cal.4th 1171, 1203.) A prosecutor may excuse a prospective juror due to lack of eye contact, facial expressions, tone of voice, and gestures. (Stubbs v. Gomez (9th Cir. 1999) 189 F.3d 1099, 1105.) The Supreme Court has determined that “deference is especially appropriate where a trial judge has made a finding that an attorney credibly relied on demeanor in exercising a strike.” (Snyder v. Louisiana, supra, 552 U.S. at p. __ [128 S.Ct. at p. 1209].)
Here, the trial court rejected defense counsel’s assertion that all the jurors seemed bored and it found the prosecutor’s explanation to be credible. The record shows that this prospective juror needed to ask for clarification when directed to move to another seat. In light of the prosecutor’s stated reason for challenging this juror, his decision not to individually question him/her does not raise an inference of pretext. (See, e.g., Lenix, supra, 44 Cal.4th at pp. 630-631.) Once the prosecutor decided that he was going to use a peremptory challenge to excuse prospective juror 1272931 because he/she appeared bored and was not paying attention, there was no reason for the prosecutor to expend time questioning him/her. We find no basis to overturn the trial court’s finding that the prosecutor’s proffered race-neutral explanation was credible.
Appellant also argues that comparative analysis of the jury selection process belies the conclusion that the prosecutor’s reason for excluding this prospective juror was race neutral. Appellant asserts that prospective juror 1272931 was likely to be prosecution oriented because he/she had strong ties to law enforcement. The prosecutor exercised a peremptory challenge against this prospective juror but did not challenge other unspecified prospective jurors who were more likely to be defense oriented because they had been arrested and convicted of crimes.
We reject this contention because appellant has improperly latched onto a factor that had nothing do with the prosecutor’s decision to excuse this prospective juror and has compared two dissimilar groups. “If a prosecutor’s proffered reason for striking a black panelist applies just as well to an otherwise-similar nonblack who is permitted to serve, that is evidence tending to prove purposeful discrimination to be considered at Batson’s third step.” (Miller-El v. Dretke (2005) 545 U.S. 231, 241.) Thus, a proper comparison analysis would require appellant to compare seated jurors who were bored and not paying attention to prospective juror number 127931. Appellant did not do so. Instead, appellant compared prospective juror 1272931’s ties to law enforcement to jurors who had been arrested or convicted of a crime. These two categories are inapposite. Appellant did not contend that the prosecutor retained other prospective jurors with ties to law enforcement similar to prospective juror number 1272931. Furthermore, this argument is based on the speculative assumption that the prosecutor in this case necessarily wanted jurors with ties to law enforcement and did not want jurors who had a criminal record. Therefore, the attempted comparison analysis fails.
In sum, we do not find any evidence that the prosecutor’s peremptory challenge was based on race and will uphold the trial court’s denial of the Wheeler motion.
II. No prosecutorial misconduct occurred.
A. Facts
Appellant filed a written in limine motion to bifurcate the prior conviction allegations and to delete these allegations when the information was read to the jury. The court granted this motion.
During a hearing, defense counsel stated that appellant and Salee formerly were Crips gang members. She orally motioned to exclude any reference to gang affiliation. The prosecutor did not object. The court “preclude[d] counsel from getting into gang affiliation or lack thereof by the defendant or the victim.”
Ronald Crum was called as a prosecution witness. Crum testified without defense objection that he was the institutional gang investigations unit sergeant and he assisted the investigative services unit as necessary. On November 22, 2006, he took several photographs of appellant. These photographs were received into evidence. Also, he took appellant to the medical clinic for an assessment. Appellant did not complain of any injuries. Defense counsel did not object to Crum’s testimony that he was the gang investigations unit sergeant.
Michael Alvarez was called as a prosecution witness. He was the investigative services unit sergeant. He interviewed appellant. Prior to conducting this interview, Alvarez spoke to the investigating officer and reviewed appellant’s central file. The prosecutor asked, “And that was for what purpose?” Alvarez replied, “To review his priors, his past history while in prison.” The prosecutor asked, “And that was to prepare yourself before you interviewed him?” Alvarez replied, “That’s correct.” Defense counsel did not object to this testimony.
B. The prosecutor did not violate the in limine rulings.
Appellant contends the prosecutor committed prejudicial misconduct by eliciting testimony concerning his gang status and prior convictions in violation of the in limine rulings. We are not persuaded.
In order to preserve a prosecutorial misconduct claim for appellate review, the defendant must interpose a timely objection and request a curative instruction. (People v. Gionis (1995) 9 Cal.4th 1196, 1215.) Defense counsel failed to do so. The alleged misconduct was amenable to cure. Therefore, this claim was forfeited. (People v. Erikson (1997) 57 Cal.App.4th 1391, 1403.)
Appellant also contends that defense counsel’s failure to object on this ground rendered her representation ineffective. We disagree. As will be explained, the prosecutor did not violate the in limine rulings and therefore an objection on this basis would have failed. Defense counsel is not obligated to interpose futile objections. (People v. Price (1991) 1 Cal.4th 324, 387.)
The prosecutor was precluded by the court’s in limine ruling from eliciting testimony about appellant’s gang affiliation and he did not do so. Crum merely testified that he was assigned to the gang investigations unit and that he helped out in the regular investigations unit when needed. There was no mention of specific gangs or appellant’s gang affiliation. The clear import of Crum’s testimony was that he was helping the regular investigations unit when he photographed appellant and took him to the medical unit. Reasonable jurors would not have inferred from Crum’s testimony that appellant was gang affiliated.
Alvarez’s testimony that he reviewed appellant’s file prior to interviewing him did not violate the in limine ruling granting the motion to bifurcate the prior conviction allegations and to delete these allegations when the information was read to the jury. Alvarez stated that he examined appellant’s file to review his priors and past history while in prison. Obviously, since the murder took place in a prison and appellant was the victim’s cellmate, the jurors would already have concluded that appellant suffered at least one prior felony conviction. Alvarez’s testimony did not provide the jurors with any significant additional information about appellant’s criminal history. The jurors did not learn how many prior convictions appellant had suffered or nature of these offenses.
Having concluded that the prosecutor did not elicit testimony in violation of the court’s in limine rulings, we find that no misconduct occurred under federal or state standards. Therefore, defense counsel’s failure to object on this basis did not render her assistance ineffective. (People v. Price, supra, 1 Cal.4th at pp. 386-387.)
DISPOSITION
The judgment is affirmed.