Opinion
NOT TO BE PUBLISHED
APPEAL from judgments of the Superior Court of Los Angeles County No. BA299877 William Ryan, Judge.
James M. Crawford, under appointment by the Court of Appeal, for Defendant and Appellant Oswaldo Portillo.
Richard Schwartzberg, under appointment by the Court of Appeal, for Defendant and Appellant Mathew Jacobs.
Edmund G. Brown, Jr., Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Steven D. Matthews and Susan S. Kim, Deputy Attorneys General, for Plaintiff and Respondent.
KLEIN, P. J.
Defendants and appellants, Oswaldo Portillo and Matthew Jacobs, appeal the judgments entered following their convictions, by jury trial, for first degree murder with firearm and gang enhancements (Pen. Code, §§ 187, 12022.53, 186.22). Defendants were sentenced to state prison for terms of 50 years to life.
All further statutory references are to the Penal Code unless otherwise specified.
The judgments are affirmed.
BACKGROUND
Viewed in accordance with the usual rule of appellate review (People v. Ochoa (1993) 6 Cal.4th 1199, 1206), the evidence established the following.
1. Prosecution evidence.
On February 24, 2006, defendant Jacobs was drinking beer and watching some friends play basketball. Defendant Portillo drove up and said he had just seen “Slash” on Greenwood Avenue. Jacobs got into the back of Portillo’s truck. Portillo retrieved a.357-caliber revolver from the back of his truck, gave it to Jacobs, and then drove in the direction of Greenwood Avenue. Less than a minute later, there was the sound of a gunshot.
Police found Gerald Brock, aka Slash, on Greenwood Avenue with a single gunshot wound to the head. Brock died. The next day, Jacobs told an acquaintance he had shot “Weasel’s uncle” on Greenwood. The 55-year-old Brock was a member of the Brown Neighborhood gang and the uncle of Timothy Parcell, who was known as Weasel.
A gang expert testified the defendants were members of the J.B.I. gang, which stood for “Just Blazing It” and “Just Being Insane.” J.B.I. and the Brown Neighborhood gang were enemies. Given a hypothetical based on the facts of this case, the expert opined Brock’s shooting had been committed for the benefit of the J.B.I. gang.
2. Defense evidence.
Portillo’s girlfriend testified he had been with her at the time of the shooting.
CONTENTION
1. The trial court erred by denying a Batson/Wheeler motion.
2. The trial court erred by giving the standard instruction on voluntary intoxication.
DISCUSSION
1. Defendants’ Batson/Wheeler motion was properly denied.
Defendants contend the trial court erred when it denied their motion alleging the prosecutor improperly used peremptory challenges against 12 Hispanic prospective jurors. This claim is meritless.
a. Legal principles.
“A party [commits error under Batson v. Kentucky (1986) 476 U.S. 79, and People v. Wheeler (1978) 22 Cal.3d 258, by using] peremptory challenges to remove prospective jurors solely on the basis of group bias. Group bias is a presumption that jurors are biased merely because they are members of an identifiable group distinguished on racial, religious, ethnic, or similar grounds.” (People v. Fuentes (1991) 54 Cal.3d 707, 713.)
“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.” ’ [Citations.] [¶] In order to make a prima facie showing, ‘a litigant must raise the issue in a timely fashion, make as complete a record as feasible, [and] establish that the persons excluded are members of a cognizable class.’ [Citation.]” (People v. Gray (2005) 37 Cal.4th 168, 186.)
“[T]he law recognizes that a peremptory challenge may be predicated on a broad spectrum of evidence suggestive of juror partiality. The evidence may range from the obviously serious to the apparently trivial, from the virtually certain to the highly speculative. [¶] For example, a prosecutor may fear bias... because [a juror’s] clothes or hair length suggest an unconventional lifestyle.” (People v. Wheeler, supra, 22 Cal.3d at p. 275.) “Because Wheeler motions call upon trial judges’ personal observation, we view their rulings with ‘considerable deference’ on appeal. [Citations.] If the record ‘suggests grounds upon which the prosecutor might reasonably have challenged’ the jurors in question, we affirm. [Citation.]” (People v. Howard (1992) 1 Cal.4th 1132, 1155.)
Here, having found a prima facie case of Batson/Wheeler error as to the prosecutor’s peremptory challenges of 12 Hispanic prospective jurors, the trial court asked for the prosecutor’s justifications. On appeal, defendants contend the prosecutor’s stated reasons were pretextual and the trial court should have granted relief.
b. Background.
The prosecutor offered the following justifications for his 12 peremptory challenges:
Juror No. 1680 had been arrested by the FBI and held in custody for five days without charge.
Juror No. 3325 wanted to be excused from jury service because of financial hardship; also, he described his brothers as “homies” and said one of them had been tried and acquitted for attempted murder.
Juror No. 5015 had been the victim of several thefts at the hands of gang members, but he never reported these crimes to the police because he didn’t think they were any big deal.
Juror No. 5090 seemed “dim and non-communicative,” and kept responding to questions by shaking his head and saying “I don’t know.”
Juror No. 5218 worked as a probation officer at a center for troubled juveniles and was more interested in the counseling aspect of the job than the law enforcement aspect.
Juror No. 6938 worked for a non-profit organization; also, he had served on a jury that apparently returned a defense verdict.
Juror No. 7822 said his friends had told him police officers were liars; also, the police have mistaken him for a gang member.
Juror No. 7846 had facial piercings which included a mouth piercing.
Juror No. 7990 had facial piercings, including lip and eyebrow piercings.
Juror No. 8043 said he could not understand written English.
Juror No. 9552 was a college art professor and an artist; also, he believed some police officers should not be allowed to carry guns.
Juror No. 9910’s brother had been convicted of receiving stolen property; also, the juror wanted to work for the probation department in order to counsel juvenile offenders
The trial court accepted the prosecutor’s justifications as legitimate and denied defendants’ Batson/Wheeler motion.
c. Discussion.
(1) Prosecutor gave legitimate reasons for peremptory challenges.
The justifications given by the prosecutor are uniformly recognized as legitimate and non-discriminatory. They fell into the following general categories.
Prospective jurors who work in certain occupations may be more liberal and less prosecution-oriented than the average juror. (See People v. Trevino (1997)55 Cal.App.4th 396, 411 [providers of health care or social services]; People v. Landry (1996) 49 Cal.App.4th 785, 790-791 [job in youth services agency and background in psychiatry or psychology]; People v. Perez (1996) 48 Cal.App.4th 1310, 1315 [social services or caregiving fields]; People v. Barber (1988) 200 Cal.App.3d 378, 394 [kindergarten teacher].)
Negative encounters with the criminal justice system, experienced by the prospective juror personally or by a relative or close friend, can make the juror unsympathetic to the prosecution. (See People v. Panah (2005) 35 Cal.4th 395, 441-442 [arrest of juror or relative]; People v. Gray, supra, 37 Cal.4th at p. 192 [“someone close” to juror arrested and sent to jail for auto theft]; People v. Farnam (2002) 28 Cal.4th 107, 138 [nephew incarcerated]; People v. Buckley (1997) 53 Cal.App.4th 658, 668 [friend charged with driving under the influence]; People v. Dunn (1995) 40 Cal.App.4th 1039, 1049 [uncle convicted of murder].)
Circumstances may indicate a prospective juror is reluctant to serve on the jury or may be unable to deliberate vigorously. (See People v. Landry, supra, 49 Cal.App.4th at p. 789 [request for hardship excuse, because of planned business trip, was denied]; People v. Douglas (1995) 36 Cal.App.4th 1681, 1689-1690 [tentative and low-keyed voir dire responses indicated disinterest in jury process]; People v. Barber, supra, 200 Cal.App.3d at p. 398 [claim of financial hardship]; United States v. Childs (9th Cir. 1993) 5 F.3d 1328, 1337 [juror “appeared hesitant and seemed to go along with whatever the questions suggested to him”].)
Prior service on a jury that hung or acquitted is a legitimate concern because the prosecution needs jurors who can reach a unanimous guilty verdict. (See People v. Farnam, supra, 28 Cal.4th at p. 138 [hung jury]; People v. Turner (1994) 8 Cal.4th 137, 170 [hung jury]; United States v. Douglas (2d Cir. 2008) 525 F.3d 225, 239-241 [acquittal]; U.S. v. Mitchell (9th Cir. 2007) 502 F.3d 931, 958 [acquittal].)
It might appear a prospective juror would have trouble understanding the case. (See People v. Ledesma (2006) 39 Cal.4th 641, 678, 679 [prosecutor believed juror was “not very bright”]; People v. Fiu (2008) 165 Cal.App.4th 360, 397-398 [juror’s failure to understand trial court during voir dire]; People v. Charron (1987) 193 Cal.App.3d 981, 990 [slowness in understanding questions indicated “limited degree of sophistication and educational background”]; see also People v. Reynoso (2003) 31 Cal.4th 903, 923-925 [job as customer service representative indicates insufficient educational experience].)
Personal appearance may indicate prospective juror is out of the mainstream. (See Purkett v. Elem (1995) 514 U.S. 765, 769 [131 L.Ed.2d 834] [long unkempt hair with a mustache and beard]; People v. Hamilton (2009) 45 Cal.4th 863, 905 [prosecutor described juror as “33 years old but she dressed like a 15-year-old with baggy clothes... very unkempt and slovenly looking person”]; People v. Ward (2005) 36 Cal.4th 186, 202 [prospective juror wore 30 silver chains around her neck and rings on all her fingers]; People v. Wheeler, supra, 22 Cal.3d at pp. 274-275 [juror’s clothes or hair length may suggest unconventional lifestyle].)
In gang cases, a prospective juror’s personal experiences with gangs might indicate either a pro-defense or an anti-prosecution disposition. (See People v. Watson (2008) 43 Cal.4th 652, 679-680 [neighborhood exposure to gangs may have biased prospective juror]; People v. Williams (1997) 16 Cal.4th 153, 191 [exposure to defendant’s gang in high school indicated prospective juror might be unsympathetic to prosecution].)
A prospective juror’s problem understanding English is a legitimate concern. (See People v. Jurado (2006) 38 Cal.4th 72, 107 [difficulty understanding spoken English and birth in Philippines indicates English might not be juror’s native language]; People v. Ayala (2000) 24 Cal.4th 243, 266 [juror struggled with English]; People v. Sims (1993) 5 Cal.4th 405, 431 [juror appeared to have difficulty with English].)
(2) Defendants have not shown prosecutor’s reasons were pretextual.
After hearing the prosecutor’s reasons for the peremptory challenges, and counter-arguments from defense counsel, the trial court said the prosecutor had given “a legitimate reason for each juror that he’s excused.... [¶] I remembered most of these, and I remember the basis and [sic] all of them including the piercings....”
On appeal, Portillo complains “the trial court simply accepted the prosecutor’s list of reasons without considering the authenticity of the reasons given.” The record shows otherwise. For instance, when the prosecutor said he challenged Juror No. 8043 because “he stated that he couldn’t read English and couldn’t understand,” the trial court remarked, “That was one that we had a dispute about. He said he couldn’t read English, but he was here for 40 years. I simply, flatly disbelieved him.” While disagreeing with the prosecutor’s evaluation of the prospective juror, the trial court implicitly recognized the prosecutor’s view might be more accurate.
Had the trial court’s evaluation been correct, Juror No. 8043 would have been properly struck because he was willing to lie to avoid jury service.
Defendants argue some of the factors relied on by the prosecutor were too remote: Juror No. 3325’s brothers had been “homies” 25 years ago; Juror No. 5015’s failure to report the crimes committed against him occurred years’ ago; Juror No. 1680’s negative law enforcement experience had been with the FBI, not a local agency. But defendants cite no authority, nor have we found any, supporting the notion that remoteness, whether temporal or otherwise, can nullify a legitimate peremptory challenge justification.
Defendants argue the trial court ignored the existence of counter-balancing factors: e.g., although Juror No. 5218 had been a juvenile gang member and convicted of a crime, the juror also had family members who worked in law enforcement; although Juror No. 7990 had multiple facial piercings, he had friends and a relative who had been killed in gang violence; seven of the challenged jurors declared they could be fair. But the rule cannot be that a legitimate justification is nullified because the trial court might have weighed conflicting factors differently than the prosecutor. That is why a prospective juror’s “I could be fair” statement does not invalidate an otherwise legitimate factor. (See People v. Watson, supra, 43 Cal.4th at pp. 679-680 [neighborhood exposure to gangs may have biased prospective juror despite juror’s insistence this would not bias him]; People v. Williams, supra, 16 Cal.4th at p. 191 [exposure to defendant’s gang in high school indicated prospective juror might be pro-defense despite juror’s statement defendant’s gang membership didn’t mean a thing to him].)
In sum, we conclude the trial court did not err by denying defendants’ Batson/Wheeler motion.
2. Jury properly instructed with CALCRIM No. 625.
Jacobs contends his due process right to a fair trial was violated because the trial court instructed the jury with CALCRIM No. 625 on the effect of voluntary intoxication evidence. This claim is meritless.
a. Background.
One of the eyewitnesses told police defendant Jacobs was drunk and had been using methamphetamine the day of the shooting. As a result, the trial court gave the jury CALCRIM No. 625, as follows: “You may consider evidence, if any, of defendant Matthew Jacobs’ voluntary intoxication only in a limited way. You may consider that evidence only in deciding whether he acted with deliberation and premeditation. A person is voluntarily intoxicated if he or she becomes intoxicated by willingly using any intoxicating drug, drink or other substance knowing that it can produce an intoxicating affect [sic], or willingly assumed the risks of that affect. [¶] You may not consider evidence of voluntary intoxication for any other purpose or for any other defendant.”
CALCRIM No. 625 is derived from Penal Code section 22, which provides:
“(a) No act committed by a person while in a state of voluntary intoxication is less criminal by reason of his or her having been in that condition. Evidence of voluntary intoxication shall not be admitted to negate the capacity to form any mental states for the crimes charged, including, but not limited to, purpose, intent, knowledge, premeditation, deliberation, or malice aforethought, with which the accused committed the act.
“(b) Evidence of voluntary intoxication is admissible solely on the issue of whether or not the defendant actually formed a required specific intent, or, when charged with murder, whether the defendant premeditated, deliberated, or harbored express malice aforethought.
“(c) Voluntary intoxication includes the voluntary ingestion, injection, or taking by any other means of any intoxicating liquor, drug, or other substance.”
While acknowledging CALCRIM No. 625 accurately tracks section 22, Jacobs argues section 22 itself violates due process. He asserts the Supreme Court’s decision in Montana v. Egelhoff (1966) 518 U.S. 37 [116 S.Ct. 2013], “compels the conclusion that California may not limit the defendant’s ability to challenge the existence of [his or her] mental state based upon voluntary intoxication....” We disagree. Indeed, the reasoning of Egelhoff demonstrates why section 22 does not violate due process.
b. Discussion.
Two Court of Appeal decisions, People v. Martin (2000) 78 Cal.App.4th 1107, and People v. Timms (2007) 151 Cal.App.4th 1292, have rejected the same due process claim Jacobs raises here. As Timms explained:
“Egelhoff concerned the constitutionality of a Montana statute providing that voluntary intoxication ‘ “may not be taken into consideration in determining the existence of a mental state which is an element of [a criminal] offense.” ’ [Citation.] Justice Scalia, with the concurrence of three justices, found no due process violation because the right to have a jury consider evidence of voluntary intoxication is not a ‘ “fundamental principle of justice.” ’ [Citation.] Another four justices concluded the statute did violate the defendant’s due process rights because it disallowed evidence relevant to determining the existence of a mental state that is an essential element of the crime. [Citation.] Concurring in the judgment, Justice Ginsberg drew a distinction between rules designed to keep out relevant, exculpatory evidence that might negate an essential element, and rules that redefine the mental state element of the offense. The former would be violative of due process while the latter would not. She viewed the Montana statute as amounting to a redefinition of the offense that rendered evidence of voluntary intoxication irrelevant to proof of the requisite mental state. [Citation.]
“Respondent acknowledges that Justice Ginsberg’s concurring opinion ‘may be viewed as the holding of the Court.’ ‘ “When a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, ‘the holding of the Court may be viewed as that position taken by those Members who concurred in the judgment on the narrowest grounds....’ ” ’ [Citation.] Justice Scalia’s plurality opinion expressed apparent complete agreement with Justice Ginsburg’s rationale. [Citation.] Assuming that Justice Ginsburg’s concurrence controls, we nonetheless conclude that the application of section 22 does not violate appellant’s due process rights.
“Appellant characterizes the amended section 22 as belonging to the prohibited category of evidentiary rules designed to exclude relevant exculpatory evidence, but it is not. First, we note that Justice Ginsburg also stated: ‘Defining mens rea to eliminate the exculpatory value of voluntary intoxication does not offend a “fundamental principle of justice,” given the lengthy common-law tradition, and the adherence of a significant minority of the States to that position today. [Citations.]’ [Citation.] Under this rationale, the 1995 amendment [to section 22] permissibly could preclude consideration of voluntary intoxication to negate implied malice and the notion of conscious disregard. Like the Montana statute, the California Legislature could also exclude evidence of voluntary intoxication in determination of the requisite mental state.
Justice Scalia’s plurality opinion said: “By the laws of England, wrote Hale, the intoxicated defendant ‘shall have no privilege by this voluntary contracted madness, but shall have the same judgment as if he were in his right senses.’ [Citation.] According to Blackstone and Coke, the law’s condemnation of those suffering from dementia affectata was harsher still: Blackstone, citing Coke, explained that the law viewed intoxication ‘as an aggravation of the offence, rather than as an excuse for any criminal misbehaviour.’ [Citation.] This stern rejection of inebriation as a defense became a fixture of early American law as well.” (Montana v. Egelhoff, supra, 518 U.S. at p. 44.)
“Second,... section 22 is part of California’s history of limiting the exculpatory effect of voluntary intoxication and other capacity evidence. [Citations.] Section 22 does not appear in the Evidence Code, it appears in the Penal Code under the ‘Preliminary Provisions,’ along with statutes defining and setting forth the kinds and degrees of crimes and their punishment (§§ 16-19.8), the requirement of act and intent or negligence (§ 20), the elements of attempt (§ 21a), etc. Since 1872, the first sentence of section 22 (now at subdivision (a)) has declared the policy of this state that an act is not less criminal because the actor committed it while voluntarily intoxicated.... Subdivision (b) of section 22 establishes, and limits, the exculpatory effect of voluntary intoxication on the required mental state for a particular crime. It permits evidence of voluntary intoxication for limited exculpatory purposes on the issue of specific intent or, in murder cases, deliberation, premeditation and express malice aforethought. The absence of implied malice from the exceptions listed in subdivision (b) is itself a policy statement that murder under an implied malice theory comes within the general rule of subdivision (a) such that voluntary intoxication can serve no defensive purpose. In other words, section 22, subdivision (b) is not ‘merely an evidentiary prescription’; rather, it ‘embodies a legislative judgment regarding the circumstances under which individuals may be held criminally responsible for their actions.’ (Egelhoff, supra, 518 U.S. at p. 57 (conc. opn. of Ginsburg, J.).)” (People v. Timms, supra, 151 Cal.App.4th. at pp. 1299-1300.)
See also People v. Atkins (2001) 25 Cal.4th 76, 93, which rejected a due process challenge to section 22 in the context of the general intent crime of arson (§ 451): “[W]e reject defendant’s argument that the withholding of voluntary intoxication evidence to negate the mental state of arson violates his due process rights by denying him the opportunity to prove he did not possess the required mental state.”
The trial court did not err by instructing the jury with CALCRIM 625.
DISPOSITION
The judgments are affirmed.
We concur: CROSKEY, J., KITCHING, J.