Opinion
B295957
05-15-2020
THE PEOPLE, Plaintiff and Respondent, v. ANTHONY RAMIREZ, Defendant and Appellant.
Tracy L. Emblem, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Noah P. Hill and Michael C. Keller, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. BA471148) APPEAL from a judgment of the Superior Court of Los Angeles County, Jose I. Sandoval, Judge. Affirmed. Tracy L. Emblem, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Noah P. Hill and Michael C. Keller, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted defendant Anthony Ramirez in count 1 of second degree burglary (Pen. Code, § 459), and in count 2 of vandalism causing more than $400 in damage (§ 594, subd. (b)). Defendant appeals from the judgment of conviction, contending that the trial court erred in denying his Wheeler/Batson motion as to two prospective jurors (Panelists Nos. 6 and 19). (People v. Wheeler (1978) 22 Cal.3d 258, overruled in part by Johnson v. California (2005) 545 U.S. 162; Batson v. Kentucky (1986) 476 U.S. 79.) We reject the contention and affirm the judgment.
Unspecified references to statutes are to the Penal Code.
"Technically, members of the venire panel do not become jurors until they have been accepted by the court and counsel and sworn as jurors." (People v. Lenix (2008) 44 Cal.4th 602, 608, fn. 4 (Lenix).) We refer to the prospective jurors as "panelists." (Ibid.)
BACKGROUND
Around September 5, 2018, the police found defendant and Maria Moreno-Hernandez (Moreno) squatting in a fenced residential-commercial property that had been vacant for years. When the owner of the property, Charles Mickens, learned that someone had broken into the property, he called the police.
Moreno is not a party to this appeal.
Following his call to the police, Mickens drove to the property and saw police officers standing outside the fence speaking with two individuals, later identified as defendant and Moreno, who were standing inside the fence. Mickens did not know defendant or Moreno and had never given them permission to be on the property. Defendant, who had changed the locks to the fence, handed a key to Mickens, who passed the key along to the officers in order to secure the property. Upon entry, Mickens soon noticed that items had been removed from a home located at the back of the property, including locks, tools, a toilet, bathroom sink, carpeting and flooring material, and surveillance equipment. At trial, a contractor provided an estimate totaling approximately $11,000 to replace or fix the items, and to provide trash hauling services for a heap of garbage left by defendant and Moreno.
DISCUSSION
Defendant contends the trial court erred in denying his Wheeler/Batson motion during jury selection. He argues the prosecutor improperly dismissed Panelists Nos. 6 and 19 because they, like defendant, were Hispanic. He also argues the record does not support the trial court's conclusion that the prosecutor provided genuine, race neutral reasons for the peremptory challenges. We disagree.
I. Relevant Proceedings
The jury selection process in this case spanned two days and involved two groups of 21 panelists taken from the entire venire. When called, each panelist was asked a series of questions by the court. Following the court's preliminary voir dire of each group of panelists, counsel for the parties conducted their own voir dire and exercised peremptory challenges. The prosecutor used peremptory challenges to excuse a total of five panelists, three of whom (Panelists Nos. 6, 16, and 19) had Hispanic last names.
In the first group of panelists, the prosecutor exercised peremptory challenges to Panelists Nos. 14, 16, and 20. Following the prosecutor's challenge to Panelist No. 20, defense counsel made, but then later withdrew, a Wheeler/Batson motion after she realized the Panelist No. 14 was not Hispanic.
In the second group of panelists, the prosecutor exercised peremptory challenges to Panelists Nos. 6 and 19. Following the prosecutor's challenge to Panelist No. 19, defense counsel again made a Wheeler/Batson motion on the ground that the prosecutor was improperly excluding Hispanic panelists. The court found a prima facie case as to Panelists Nos. 16, 6, and 19, and asked the prosecutor to state her reasons for excusing these panelists. The prosecutor stated her reasons for each excusal. Following argument, the trial court denied the Wheeler/Batson motion, finding that the stated reasons were credible and race neutral.
The excusal of Panelist No. 16 is not at issue in this appeal. As to Panelists Nos. 6 and 19, we discuss the prosecutor's reasons below, and find no error in the trial court's ruling.
II. Governing Law
The three-step procedure for analyzing a Wheeler/Batson claim is well established. "'First, the defendant must make a prima facie showing that the prosecution exercised a challenge based on impermissible criteria. Second, if the trial court finds a prima facie case, then the prosecution must offer nondiscriminatory reasons for the challenge. Third, the trial court must determine whether the prosecution's offered justification is credible and whether, in light of all relevant circumstances, the defendant has shown purposeful race discrimination. [Citation.]'" (People v. Smith (2018) 4 Cal.5th 1134, 1147 (Smith).)
The third step of this inquiry "focuses on the subjective genuineness of the reason, not the objective reasonableness. (People v. Reynoso (2003) 31 Cal.4th 903, 924 [(Reynoso)].) . . . To assess credibility, the court may consider, '"among other factors, the prosecutor's demeanor; . . . how reasonable, or how improbable, the explanations are; and . . . whether the proffered rationale has some basis in accepted trial strategy."' [Citations.]" (People v. Gutierrez (2017) 2 Cal.5th 1150, 1158-1159 (Gutierrez).)
On appeal, because the trial court observes the prosecutor's demeanor when making a credibility determination (Lenix, supra, 44 Cal.4th at p. 613), we review its determination of the prosecutor's justifications with "'great restraint'" (People v. Ervin (2000) 22 Cal.4th 48, 91), and uphold the court's ruling if supported by substantial evidence. (Lenix, supra, at p. 613, citing People v. Bonilla (2007) 41 Cal.4th 313, 341-342; accord, Gutierrez, supra, 2 Cal.5th at p. 1159; People v. McDermott (2002) 28 Cal.4th 946, 970.) So long as the trial court makes a sincere and reasoned effort to evaluate the nondiscriminatory justifications offered, its conclusions are entitled to deference on appeal. (Lenix, supra, at pp. 613-614; People v. Burgener (2003) 29 Cal.4th 833, 864.) "'"The ultimate burden of persuasion regarding [discriminatory] motivation rests with, and never shifts from, the [defendant]."' [Citation.]" (Smith, supra, 4 Cal.5th at p. 1147.)
III. Analysis
In this case, defendant has failed to establish that the prosecutor harbored discriminatory motivation when she exercised peremptory challenges against Panelists Nos. 6 and 19. We address each panelist in turn, and distinguish this case from the case on which defendant relies, Gutierrez, supra, 2 Cal.5th 1150.
A. Panelist No. 6
Panelist No. 6 was a divorced preschool teacher with two children. She did not have prior jury experience. Counsel for Moreno posited the following hypothetical question to the first group of panelists: "Now how many of you said that you have kids? Okay, quite a few of you. Okay. I'm going to give you a quick hypothetical. Imagine that you hear—you're at home with your two kids, they're in a separate room, you're in the kitchen preparing something for them to eat and you hear them giggling and then suddenly they're quiet and you're suspicious so you go into the living room and you see that there's crayons all over the walls and you see your two kids standing in the living room and you ask them what happened and both of them, the kids, start giggling, look at each other and you get angry and you say, you know what, both of you go sit on time out. Now with respect to each of your kids what standard of proof are you using to determine who drew on the walls."
Following a brief answer from another panelist, Panelist No. 6 voluntarily answered the question based on her experience as a preschool teacher. She explained: "I guess I would collect information from both sides, we would do that together or do it separately just to hear their side of the story. That's really it, I guess."
Moreno's counsel questioned Panelist No. 6 whether it mattered if she "g[ot] the right person when you put both of them on time out?" She responded: "Well, I wouldn't put them on time out first, but I would have them explain to me what happened in their own story and then have them come together to talk to each other so that they can hear each persons [sic] side of the story. So really I guess based on evidence and what they say and how they respond and you can usually tell between them at that age."
During her explanation for excusing Panelist No. 6, the prosecutor stated that the panelist's "demeanor in answering was very . . . shy and reticent. She didn't seem very expressive and . . . she seemed not forthcoming in her answers . . . which also led me to believe that she may . . . not participate in deliberations, that the same way that her answers were minimal or had—somewhat nonresponsive that she may similarly not truly participate and specifically be a non-participating juror."
In response, defense counsel stated Panelist No. 6 was participating and had answered the prosecution's answers intelligently.
Defense counsel and the prosecutor initially confused who posited the hypothetical question. The prosecutor later clarified that it was Moreno's counsel who had examined Panelist No. 6.
The prosecutor replied and said that she was also concerned about Panel No. 6's instinct to not separate the children during the hypothetical, and that "her job in dealing with preschool children in her career as a teacher, that is something that concerns me too on a gut level in terms of the dealing with any kind of wrongdoing or a—a natural inclination towards the underdog."
Following argument of counsel, the trial court found the prosecutor's reasons for exercising a peremptory challenge, specifically that Panelist No. 6 appeared shy, reticent, and not forthcoming, "were sufficiently race neutral and genuine." Though the court did not observe the type of demeanor described by the prosecutor, it found the justifications to be "consistent with what somebody may offer in a strategy for their trial."
We conclude that the trial court made a sincere and reasoned effort to evaluate whether the prosecutor set forth genuine race neutral justifications for excusing Panelist No. 6. The record supports the prosecutor's justifications. Though the panelist provided a voluntary answer to the hypothetical, her initial response was brief and did not answer the question posed (i.e. what standard of proof should be used to determine which child drew on the wall). The prosecutor also viewed Panelist No. 6 as shy and reticent when providing her answers, a legitimate reason for concern whether she would participate fully in deliberations. (Lenix, supra, 44 Cal.4th at p. 613 ["A prospective juror may be excused based upon facial expressions, gestures, hunches, and even for arbitrary or idiosyncratic reasons"].) That the court did not observe the same demeanor did not compel rejection of the prosecutor's explanation. (Thaler v. Haynes (2010) 559 U.S. 43, 48 ["Batson plainly did not go further and hold that a demeanor-based explanation must be rejected if the judge did not observe or cannot recall the juror's demeanor"].)
The record also supports the prosecutor's "gut level" concern that Panelist No. 6's occupation as a preschool teacher might suggest difficulty in "dealing with any kind of wrongdoing or . . . a natural inclination towards the underdog." (See Reynoso, supra, 31 Cal.4th at p. 925 [prosecution may challenge panelist whose occupation, in the prosecutor's subjective estimation, would not render him or her the best type of juror to sit on the case]; People v. Barber (1988) 200 Cal.App.3d 378, 394, 396 [upholding race neutral explanation that teacher was liberal and "less prosecution oriented"].)
B. Panelist No. 19
Panelist No. 19, also Hispanic, was an electrician with no prior jury experience. He sat closest to the prosecutor during the first day of voir dire.
The prosecutor justified using a peremptory challenge against Panelist No. 19 as follows: "[F]rom the moment that he came in his eyes seemed half closed and he was kind of leaning his head back. And when he would look at me he looked at me through kind of hooded eyes or half opened eyes. And . . . I just wondered if he was high. . . . He seemed also in his answers like he was struggling to answer basic questions which made me wonder if he was high. And I . . . think if a juror is under the influence I don't think that can be a fair juror. Today he is sitting further away from me he still has the same kind of hooded look about his eye."
Defense counsel responded, noting that Panelist No. 19 "really didn't speak," but answered everything in a cognizant fashion. Counsel for defendant and counsel for Moreno identified other jurors who appeared sleepy (Panelists Nos. 8, 10, and 11) who were not Hispanic, and were not excused by the prosecution for being non-attentive, non-responsive, or possibly under the influence of drugs.
Defense counsel exercised a peremptory challenge to excuse Panelist No. 10.
The prosecutor replied, stating that while she observed Panelist No. 1 to be sleepy, she did not observe similar behavior from another panelist. The prosecutor also distinguished someone who appeared "sleepy" from someone who exhibited "hooded eyes." Moreno's counsel noted that while Panelist No. 19 nodded along during voir dire and laughed during jokes, he may have had trouble understanding and answering questions.
Counsel for defendant and counsel for Moreno jointly exercised a peremptory challenge to excuse Panelist No. 1.
Following argument, the trial court noted that the prosecution "had an opportunity to observe" Panelist No. 19 and offered reasons that were not pretextual, but sufficiently race neutral.
We conclude that the trial court's acceptance of the prosecution's race neutral explanation for the peremptory challenges was sincere and reasoned. The prosecution's explanation was self-evident. A prospective juror who "had given the impression during voir dire that [he or] she was under the influence of drugs" is a race neutral reason justifying a peremptory challenge. (Davis v. Ayala (2015) 135 S.Ct. 2187, 2194.) The fact that the parties disagreed over Panelist No. 19's demeanor hardly shows that the prosecutor's reasons were pretextual. (Id. at p. 2208 ["It is not at all unusual for individuals to come to different conclusions in attempting to read another person's attitude or mood"].) That is particularly true when Moreno's counsel agreed that Panelist No. 19 had trouble understanding and answering questions.
Defendant asserts that Moreno's counsel's statement concerning Panelist No. 19 was mistaken because "the record establishes that both jurors were not asked any questions by any party's counsel or the trial court." The assertion is incorrect. As it did with every panelist, the trial court asked Panelist No. 19 a series of questions that were projected on a screen.
We also note that the prosecutor did not excuse Panelists Nos. 6 and 19 until the second of two panel rounds of questioning. That the prosecutor passed on excusing the two Panelists during the first panel round further suggests the prosecutor's good faith when exercising her peremptory challenges against them in the second round. (Gutierrez, supra, 2 Cal.5th at p. 1170 ["we have found that passes while a specific panelist remains on the panel '"strongly suggest[ ] that race was not a motive"' in challenged strikes"].)
C. People v. Gutierrez
Defendant maintains that, as in People v. Gutierrez, supra, 2 Cal.5th 1150, the trial court here failed to sincerely and reasonably evaluate the prosecutor's race neutral reasons. Gutierrez is clearly distinguishable.
That case arose out of a gang-related shooting. (Gutierrez, supra, 2 Cal.5th at p. 1155.) During jury selection, the prosecution exercised 10 of 16 peremptory challenges to remove Hispanic individuals from the jury panel. (Id. at p. 1154.) One panelist in question, No. 2723471, stated that she was unaware that gangs were active in the Wasco area where she resided. (Id. at p. 1160.) When the prosecution exercised a peremptory challenge against the panelist, defense counsel objected based on Wheeler/Batson, and the court found the defendants had established a prima facie case. (Id. at p. 1154.) The prosecutor explained his reason for the strike: "'[s]he's from Wasco and she said that she's not aware of any gang activity going on in Wasco, and I was unsatisfied by some of her other answers as to how she would respond when she hears that [a prosecution witness] is from a criminal street gang, a subset of the Surenos out of Wasco.'" (Id. at p. 1160.) No such "other answers" were ever identified, either at trial or on appeal. (Ibid.) In evaluating the prosecution's explanation, the trial court remarked that the panelist was excused due to the "'Wasco issue and also lack of life experience,'" even though the prosecutor had not cited a lack of life experience as a reason for the peremptory challenge. (Id. at p. 1161.)
The Supreme Court concluded that while the panelist's unawareness of gang activity was a facially nondiscriminatory reason, it was not self-evident why, based on this reason, the prosecutor excused the panelist. (Gutierrez, supra, 2 Cal.5th at p. 1171; see id. at p. 1169 ["his explanation left some lucidity to be desired"].) Moreover, the trial court never clarified why it accepted this reason as an honest one. Further, the prosecutor's other tendered reason ("other answers") was not supported by the record, and the trial court relied on a reason ("lack of life experience") not proffered by the prosecutor. Under these circumstances, the Supreme Court could not conclude that the trial court made a sincere and reasoned attempt to evaluate the prosecutor's explanation regarding the strike. (Id. at p. 1172.)
In short, the focus of Gutierrez was on the trial court's failure to conduct a "'sincere and reasoned attempt' to evaluate the prosecutor's justification," where the justifications were either not self-evident or unsupported, and where the trial court cited a reason not proffered by the prosecutor. (Gutierrez, supra, 2 Cal.5th at p. 1159.) Here, many of the prosecutor's reasons for excusing Panelists Nos. 6 and 19 were self-evident, and to the extent they were not, the prosecutor fully explained her reasons for the challenges. Defendant's disagreement with those reasons does not mean they were pretextual or unsupported by the record. No more was required of the court to ascertain if the prosecutor's reasons for exercising peremptory challenges were genuine.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
WILLHITE, J.
We concur:
MANELLA, P. J.
COLLINS, J.