Opinion
F048581
12-7-2006
THE PEOPLE, Plaintiff and Respondent, v. ROBERT VASQUEZ PEREZ, Defendant and Appellant.
Kathryn G. Streem, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, and Janis Shank McLean and Peter W. Thompson, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
THE COURT
Before Cornell, J., Wiseman, Acting P.J., and Levy, J.
A jury convicted appellant, Robert Vasquez Perez, of felony evading a police officer (Veh. Code, § 2800.2, subd. (a)). In a separate proceeding Perez admitted a prior prison term enhancement (Pen. Code, § 667.5, subd. (b)) and allegations that he had a prior conviction within the meaning of the three strikes law (Pen. Code, § 1170.12). On July 25, 2005, the court sentenced Perez to the an aggregate term of five years, the midterm of two years on his evading conviction, doubled to four years because of Perezs prior strike conviction, and a one-year prior prison term enhancement. On appeal, Perez contends the court erred when it denied his Wheeler/Batson motion. We will reverse.
People v. Wheeler (1978) 22 Cal.3d 258, Batson v. Kentucky (1986) 476 U.S. 79.)
FACTS
On March 20, 2005, Perez sped away at a high rate of speed and ran several stop signs when a sheriffs deputy attempted to stop him. The deputy caught up to Perez when Perezs car drove onto agricultural property and got stuck in some mud.
Jury Voir Dire
During voir dire questioning, Prospective Juror Manuel P. stated that he lived in Visalia, that he was self-employed, that his wife worked at Get and Go, and that he did not have any prior jury experience. Manuel P. had never been involved in a criminal case, he did not have medical or legal training, had never been involved in law enforcement, and he did not have any close friends or relatives in law enforcement.
Prospective Juror Marta H. stated that she had lived in Visalia for 15 years, she was self-employed as was her husband, she did not have any prior jury experience, legal or medical training, and no involvement in law enforcement. However, she did have two cousins who were probation officers in Hanford.
Prospective Juror Lillian D. testified that she worked for Tulare County, her husband was a field worker, her brother a correctional officer, and she had lived in Woodlake for 16 years.
After the first 18 jurors answered questions, both sides passed for cause.
The prosecutor then used his first peremptory challenge to excuse Prospective Juror Nathan D. He exercised his next peremptory challenges against Prospective Jurors Julie B., Marta H., and Maria B.
Several prospective jurors were then called to replace the ones excused including Veronica H. Veronica H. stated that she had lived in Earlimart for 13 years, she was a student, she was not married, she had not previously been on a jury, she had not been involved in a criminal case, she did not have any training in medicine or law or been involved in law enforcement and she did not have any close friends or relatives in law enforcement.
At the next opportunity to exercise peremptory challenges the prosecutor excused Prospective Jurors Manuel P., Lillian D., and Veronica H. Defense counsel then made a Wheeler motion which the court heard in chambers. In making the motion defense counsel stated,
"....The defense would be making a motion pursuant to the Batson/Wheeler cases and the progeny. It would appear that the People are excusing people with Hispanic heritage. My client is of Hispanic heritage. I would note that . . . [Lillian D.] would appear to [be] of Hispanic heritage. She was removed. [There] does not appear to be any reason that I could see that would benefit the Peoples case . . . . [Manuel P.] was also excused. That individual appeared to be of Hispanic heritage . . . [Maria B.], I believe also was of Hispanic heritage.
[Marta H.], I believe, was also of that heritage. I believe its prejudicial to make a motion pursuant to that case. [¶] . . . [¶]"
In responding to the motion, the court first noted that the threshold for making a prima facie case of exclusion for bias had recently been lowered by the United States Supreme Court. The court then asked the prosecutor to state his reasons for excluding the four prospective jurors cited by defense counsel. The following colloquy then occurred.
"MR. HOLLY [PROSECUTOR]: [Lillian D.] Im sorry, my notes are here and it will take me just a minute. She was from Woodlake and worked as a manager of the kitchen. And she was slouched in her chair looking very exasperated and intimidated.
"THE COURT: I did note — I have to say for the record that I did note that posture, for whatever it may mean. I do recall that. Okay.
"THE COURT: [Manuel P.]?
"MR HOLLY: What was the next one?
"THE COURT: [Manuel P.].
"MR. HOLLY: [Manuel P.] was actually sleeping in the back row. He was also self-employed. In general I dont like self-employed as an answer, because that doesnt really tell me anything about what they do.
"THE COURT: He was juror number two or three.
"MR. HOLLY: Juror number three.
"THE COURT: And he was — I was concerned that he was — I dont know if he was sleeping, but he certainly had his eyes closed for a good portion of the start. So I understand that.
"Then we had — Im not quite sure how to pronounce the name. Its probably a hyphenated. [Maria B.]
"THE COURT: Thank you. She was in seat number four.
"MR. HOLLY: You know, my notes arent complete on this one, but I remember I gave her a negative mark right off the bat. I believe it had something to do with her demeanor. I cant remember quite what it was. You know, I think in her case it wasnt so much that I didnt like her, but I didnt like the guy that was sitting down below her, which I think was Mr. — the next person I bumped, that might have been — Im not sure.
"THE COURT: Okay. [Marta H.].
"MR. HOLLY: [Marta H.] was her demeanor, dress, slouched in the chair, exasperated. I did not think she would make a good juror."
The court then found that the prosecutors challenges were race-neutral and noted there remained on the panel at least three or four prospective jurors of Hispanic descent.
Defense counsel argued that he did not notice the things the prosecutor mentioned in his explanation and that none of prospective jurors who were described as exasperated showed any physical signs of being exasperated.
The prosecutor then stated that by his count, five people of Hispanic heritage remained on the jury.
The following colloquy then occurred:
"MR. HOLLY: . . . Also for the record, [Veronica H.] I didnt like the way she was dressed.
"THE COURT: Was she wearing a tank top.
"MR. HOLLY: Tank top and belt buckle. She looked frankly kind of like a party girl, you know what I mean? I dont know if shes gonna take this seriously.
"THE COURT: You havent excused her yet.
"[DEFENSE COUNSEL]: So she would be excused.
"THE COURT: Thats right. Okay. So the ruling still stands."
After voir dire resumed in open court, the defense and the prosecution both accepted the jury as constituted. The parties then accepted two alternates without exercising any challenges.
DISCUSSION
Perez contends that the court found a prima facie case of group discrimination that the prosecutor failed to rebut. Thus, according to Perez the court erred when it denied his Wheeler motion. Respondent contends that the courts implied finding of a prima facie case is not supported by substantial evidence and that in any case, the prosecutor provided legitimate race-neutral explanations for dismissing the jurors at issue. We will find that the court erred in denying the defenses Wheeler motion because the prosecutor failed to establish that his exclusion of Prospective Juror Maria [B.] was for race-neutral reasons.
In People v. Jurado (2006) 38 Cal.4th 72, our Supreme Court stated, "The use of peremptory challenges to remove prospective jurors because of their race or gender violates both the federal and the California Constitutions. [Citations.] The United States Supreme Court recently reiterated the applicable legal standards. `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 justifications 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.] This court gives `great deference to the trial court in distinguishing bona fide reasons from sham excuses." [Citation.]" (Id. at p. 104.)
Preliminarily, we find moot respondents contention that Perez failed to make a prima facie case of discrimination. As noted by the court in Jurado, "By asking the prosecutor to explain the peremptory challenges, the trial court implicitly found that defendant had made a prima facie showing of impermissible discrimination in the exercise of peremptory challenges. Once the trial court ruled on the credibility of the prosecutors stated reasons, the issue of whether the defense had made a prima showing became moot. [Citations.]" (Ibid, italics added.)
Further, in accord with the above-noted, three-step analysis, once the court found a prima facie case, the burden shifted to the prosecutor to provide race-neutral reasons for the strikes. However, the prosecutor could not articulate any coherent reason for excluding Prospective Juror Maria B. other than to say he believed it might have had something to do with her demeanor or that "it wasnt so much that I didnt like her, but I didnt like the guy that was sitting down below her . . . that might have been — Im not sure." We find neither of these tenuous reasons sufficient to satisfy the prosecutors burden of providing race neutral reasons for excluding this prospective juror.
Moreover, we need not consider the prosecutor reasons for striking the other jurors at issue because "[t]he exclusion of a single juror on the basis of race or ethnicity is an error that requiring reversal. [Citation.]" (People v. Silva (2001) 25 Cal.4th 345, 386.) Thus, we conclude the court erred in denying Perezs Wheeler motion.
DISPOSITION
The judgment is reversed.