Opinion
E075227
01-24-2022
THE PEOPLE, Plaintiff and Respondent, v. JOSE ALEXANDER RIVAS, Defendant and Appellant.
Allison H. Ting, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Julie L. Garland, Assistant Attorney General, Daniel Rogers, and Kristen Kinnaird Chenelia, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. RIF1801421. Mac R. Fisher, Judge. Affirmed.
Allison H. Ting, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Julie L. Garland, Assistant Attorney General, Daniel Rogers, and Kristen Kinnaird Chenelia, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
MENETREZ J.
Jose Alexander Rivas stabbed his wife to death. A jury convicted him of premeditated and deliberate first degree murder and found true the allegation that he used 1 a deadly weapon. (Pen. Code, §§ 187, subd. (a), 12022, subd. (b)(1), 1192.7, subd. (c)(23)). The trial court sentenced Rivas to 26 years to life in prison.
On appeal, Rivas argues that the prosecutor's use of peremptory strikes excusing seven Hispanic women during jury selection violated Batson v. Kentucky (1986) 476 U.S. 79 (Batson) and People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler). He also argues that there was insufficient evidence showing that he acted with deliberation. We affirm.
BACKGROUND
Rivas killed his wife, Dixie R., early in the morning on Monday, March 19, 2018.
A. Family Background
Rivas and Dixie had been together for 13 years and had three children aged 10, seven, and one. Dixie's brother, Mynor G., lived with Dixie and her family.
Rivas controlled the family's finances so that Dixie was allowed to spend money only if permitted by Rivas. Dixie started working in 2016 to help alleviate the family's financial distress. Dixie shared with her sister, Crystal A., that Rivas did not like that she worked.
In early March 2018, Dixie told Mynor that she wanted to divorce Rivas and to move out with Mynor and her children. Dixie complained to Mynor about how aggressive and demanding Rivas acted toward her when he drank.
B. The Weekend Before the Killing
On Saturday, March 17, 2018, Crystal and her fiancé visited Dixie and Rivas at their apartment and found Dixie and Rivas alone together in their bedroom. Rivas exited 2 and spoke privately with Crystal. Rivas told Crystal that Dixie wanted a divorce, but he did not.
Crystal later spoke with Dixie, who was "very sad" and confirmed that she wanted a divorce. Dixie expressed concern about how aggressive Rivas acted toward her when he drank, which made her feel so uncomfortable that she would lock herself in the bedroom. When Rivas drank and had sex with Dixie, he choked her and acted aggressively toward her, which Dixie said made her feel "like she was being raped."
On Sunday, March 18, 2018, Rivas told Mynor that he believed his marriage was ending because Dixie was cheating on him with a coworker. Mynor described Rivas as "just kind of losing it." Rivas said: "I'm just getting to that point where I don't give a fuck, and when I don't give a fuck anymore, I really don't give a fuck about anything." Rivas's statement bothered Mynor, who worried that something "bad" might happen.
Mynor left for work that night shortly after midnight. When he left, Dixie and Rivas were watching television. Rivas was drinking beer, but he did not seem drunk to Mynor. That night, Dixie spoke with Crystal between 11:00 p.m. and midnight. Dixie told Crystal that she was "okay."
C. The Killing
At approximately 4:30 a.m. on Monday, March 19, 2018, a neighbor of Rivas's and Dixie's was awoken by a loud noise, which he thought came from something falling. He also heard a child say, "'No daddy. Daddy no.'" The sounds lasted for at least one minute. Another neighbor heard a woman's muffled scream. 3
The Rivas's oldest child, S.R., awoke to hearing Dixie loudly scream twice, "'I need the kids.'" S.R. ran out of his bedroom and saw his father holding a knife that was missing a handle. Rivas was "[h]urting [his] mom" "with that knife." S.R. saw his mother lying on the floor with blood coming out of her mouth and surrounding her.
Rivas or Dixie told S.R. to call 911, but S.R. was afraid and could not do it. He worried that his father might hurt him and "'do that to'" him if he complied. He also feared for his siblings. S.R. ran back into his bedroom with his brother, who had been in the hallway. Rivas brought S.R.'s sister into the bedroom to be with her brothers.
Rivas told his son that "the reason why he killed [his mother]" was that "she wanted to go with another person, another man" and leave Rivas. Rivas brought S.R. an envelope containing money and told him the money was for toys, clothes, and food.
Rivas called 911 at 4:27 a.m. He twice told the dispatcher, "I just killed my wife." The dispatcher asked Rivas whether his wife was breathing, and Rivas responded, "No, I fucked up. She's dead." But Rivas also told the dispatcher that Dixie was "dying" and that he did not want her to die. Rivas described what happened as: "She cheated on me and I just got angry. [¶] I killed her. I stabbed her." He also said, "I didn't mean to-I didn't mean I'm sorry," and "No, God. I'm a fucking killer. What did I do?" The dispatcher described Rivas as being hysterical.
Law enforcement arrived while Rivas was on the phone with 911. Deputies immediately detained Rivas, who was hysterical, crying, and panicked. Rivas told them, "'I didn't mean to do it.'" Dixie was covered in blood and lying on her back in the 4 kitchen. An officer escorted Rivas to a patrol car, and Rivas told him, "I didn't mean to do this," and repeatedly asked, "What did I do?"
D. The Crime Scene
The bottom hinge of the master bedroom door was broken. There was fresh blood on a pillowcase and the bed's fitted sheet. Blood from both Dixie and Rivas was on the sheet, but most of it was from Dixie. The sheet had tears in it consistent with a struggle. A knife handle was found in the bedroom. Both Dixie's and Rivas's blood was found in the hallway.
Law enforcement found a knife handle and two knives (one four to five inches and one eight inches) missing their handles in the kitchen. The knives appeared to come from a knife block in the kitchen.
E. The Body
Dixie was pronounced dead at the scene. Multiple sharp force injuries caused Dixie's death. The most significant injury was a stab wound on the left side of Dixie's neck that was one and one-half inches deep and cut through the left carotid artery. She also had two five-inch-deep stab wounds on her abdomen, which cut the small intestines and a muscle on the back of the lower abdomen and pelvis. Dixie also had a sharp force incised wound on the right side of her neck. The injury was consistent with a knife being drawn across Dixie's neck. The injury cut through soft tissue and muscles but no major veins. 5
In addition, Dixie also had numerous abrasions and recent bruises all over her body. The bruises could have occurred at the time of death or within one week before death. Dixie also suffered blunt force injuries on her left temple and the back of the right side of her head. She had incised wounds on her hands consistent with defending herself by putting up her hands to attempt to block a sharp instrument.
F. Rivas's Interview with Law Enforcement
Law enforcement interviewed Rivas that afternoon, and the interview was played for the jury. Rivas told the detective that Dixie wanted "a separation," which he knew and agreed to the previous month. He then started sleeping on the couch. Dixie told Rivas that she did not love him. She wanted a divorce, but Rivas did not. Rivas learned that Dixie was cheating on him with a coworker of hers named Tristan, but she denied it.
Rivas had to pick up Dixie from a local college one night during the previous week because law enforcement discovered her there drinking and smoking with Tristan. The officers would not allow her to drive home.
The morning before the killing, Dixie left the house to go hiking, and Rivas believed she was going by herself. After she returned home, he searched her phone and found a text message thread indicating that she had hiked with Tristan.
The night before the killing, Rivas and Dixie went to see a movie, and Rivas believed that "[e]verything was good." When they returned home, Rivas and Dixie stayed up watching television and talking. Rivas was drinking beer. He said he did not 6 have a drinking problem. Dixie was drinking marijuana edibles and went to bed before Rivas.
Rivas later went into the bedroom to put the baby to bed. He noticed that Dixie had a small steak knife under her pillow, which he found "concerning." Dixie was asleep. When he saw the knife, Rivas remembered when Dixie had told him, "'I know you mad and everything for me tellin' you what I tell you. Please don't kill me.'" He explained: "So I was like, to me that felt offensive when I seen the knife."
He moved the baby back into the living room, returned to the bedroom, and woke up Dixie to confront her about the knife. She reacted by telling him to "'[l]eave [her] the fuck alone'" and then grabbing the knife and swinging it toward him. He was not close enough for the knife to make contact. Rivas initially said that he grabbed the knife from Dixie, but later he said that he grabbed the knife off of the bed after she placed it there. Dixie did not fight to keep the knife.
While Rivas had the knife, Dixie told him to leave, she was "'done with'" him, "she was leaving" him and the children, and "she was goin' with that guy." Rivas was "mad" and "[d]isappointed." Rivas claimed that he then blacked out, but he also admitted that he could "remember some stuff."
Dixie tried to leave the room, but Rivas stood in her way and would not allow her to pass. Dixie started screaming for their son, S.R., so Rivas covered her mouth and told her to stop. Rivas held Dixie from behind on the ground, and she kicked the neighbor's 7 wall and the bedroom door, breaking it off its bottom hinge. When Rivas was covering Dixie's mouth, Dixie bit his finger, causing him to let her go. Dixie ran to the kitchen.
Rivas and Dixie struggled again in the kitchen. Dixie grabbed a knife from the butcher block in the kitchen. Rivas grabbed her from behind and took the knife away from her. He denied acting in "self-defense" when he disarmed her.
Rivas heard S.R.'s voice. Dixie was lying on the ground, and Rivas was on his knees. Rivas told his son: "She was trying to leave you and me. She was trying to leave."
Rivas could not remember any of the details of stabbing Dixie, but he knew he "did it." Rivas admitted that stabbing Dixie was not "warranted" and that she did not deserve to be stabbed. He also admitted that Dixie was not doing anything to endanger either his life or his kids' lives when he stabbed her. She did not pose any immediate threat to Rivas while they were in the kitchen.
Rivas had numerous injuries, including an abrasion or cut on his right shoulder that did not break the skin, indentations in his thumb consistent with being bitten, minor cuts on some fingers, and a cut on his pinky finger.
G. Prosecution's Domestic Violence Expert
A detective testified for the prosecution as a domestic violence expert. He described the three general stages of the cycle of violence in relationships with domestic violence. Responding to a hypothetical mirroring the facts of this case, the detective agreed that the relationship was consistent with the stages of domestic violence. 8
H. Rivas's Testimony
Rivas testified on his own behalf. He described his relationship with Dixie as loving before February 2018, when she told him that she wanted a separation. Rivas claimed to have physically hurt Dixie only once before in their relationship, by pulling her hair.
After Dixie told Rivas that she wanted to separate, she became cold and distant toward Rivas. Dixie sometimes told Rivas that he was a controlling husband. Rivas did not want Dixie to leave, so he started drinking less and otherwise tried to change. Meanwhile, Dixie was going out with friends and coworkers. Rivas monitored Dixie's phone, and in the beginning of March 2018, he learned that she was communicating with Tristan. Rivas said that around this time he was drinking approximately 16 beers per day.
Rivas had to pick Dixie up from a local college parking lot because police had told her she that she was too intoxicated to drive home. Dixie was alone when he picked her up, but she had been hanging out with Tristan.
Rivas continued to claim that he could not recall stabbing Dixie or various other details of the incident. Rivas's description of finding the knife and confronting Dixie about it was similar to what he had said in his police interview. But he also added that the bedroom lights were off. Rivas testified that Dixie initially swung the knife at him, but he no longer remembered taking the knife away from her.
When Rivas and Dixie were arguing, Dixie was screaming and attempting to leave to go to Tristan, which upset Rivas "a little." Rivas grabbed her to prevent her from 9 leaving because he did not want her to drive drunk. Dixie started screaming and banging on walls, so Rivas grabbed her from behind and covered her mouth, which is when she kicked the door and they fell to the floor. Dixie grabbed the knife again, and he took it from her.
Rivas could not recall going down the hallway. He also could not remember how any blood came to be in the bedroom or the hallway. Rivas remembered being in the kitchen with Dixie. Dixie grabbed another knife and "knifed it at" him. Rivas grabbed the knife away from her. When Rivas took the knife, "[n]othing" was in his mind. He did not want to hurt Dixie. Rivas's next memory is of seeing S.R. crying in the hallway. Rivas never intended to kill Dixie.
I. Mental Health Experts
Approximately two weeks after the killing, a psychiatrist in jail diagnosed Rivas with major depressive disorder and prescribed him medication. The psychiatrist had no opinion about whether the disorder predated the treatment date.
Dr. Francisco Gomez, Ph.D., a forensic and clinical neuropsychologist, testified on behalf of Rivas. He diagnosed Rivas with complex trauma, major depressive disorder, and alcohol abuse disorder. Dr. Gomez opined that a person with those diagnoses would react impulsively to stress by "reacting without thinking." Such a person would be "less likely to be able to think clearly in an emotionally charged situation."
Dr. Veronica Thomas, Ph.D., a clinical and forensic psychologist, testified on behalf of the prosecution after listening to Dr. Gomez's testimony and reviewing his 10 report and the assessment data. Dr. Thomas opined that Rivas was reporting his "genuine feelings" in taking tests for Dr. Gomez, but Rivas's feelings "did not match with his actual mental state."
DISCUSSION
A. Batson/Wheeler Motions
Rivas argues that the trial court erred by denying his three Batson/Wheeler motions challenging the prosecutor's use of peremptory challenges to exclude seven Hispanic female prospective jurors, though he does not clearly articulate whether he is claiming they were improperly excused on the basis of their race, gender, or both. We conclude that his argument lacks merit.
1. Legal Framework
The federal and state constitutions prohibit the use of peremptory strikes on the basis of group bias-that is, on the basis of a juror's race, gender, ethnic background, or other similar characteristics. (People v. Avila (2006) 38 Cal.4th 491, 541, citing Batson, supra, 476 U.S. at p. 88 and Wheeler, supra, 22 Cal.3d at pp. 276-277; People v. Battle (2021) 11 Cal.5th 749, 772 (Battle).) There is a rebuttable presumption that the prosecutor is exercising the peremptory challenge properly. (People v. Trinh (2014) 59 Cal.4th 216, 240 (Trinh).) It is the defendant's burden to demonstrate purposeful discrimination. (Ibid.)
Courts apply a three-step framework to evaluate a defendant's challenge under Batson/Wheeler. (People v. McDaniel (2021) 12 Cal.5th 97, 121 (McDaniel).) "First, 11 the defendant must make a prima facie case by showing facts sufficient to support an inference of discriminatory purpose. [Citation.] Second, if the defendant makes a prima facie showing, the burden shifts to the prosecutor to offer a permissible, nondiscriminatory explanation for the strike. [Citation.] Third, if the prosecutor offers a nondiscriminatory explanation, the trial court must decide whether that explanation is genuine, or whether impermissible discrimination in fact motivated the strike." (Battle, supra, 11 Cal.5th at p. 772.) "The defendant's ultimate burden is to demonstrate that 'it was more likely than not that the challenge was improperly motivated.'" (Trinh, supra, 59 Cal.4th at pp. 240-241.)
The trial court denied Rivas's motions at the third step, so we start our analysis there. The third step "of the Batson/Wheeler inquiry focuses on the subjective genuineness of the reason, not the objective reasonableness." (People v. Gutierrez (2017) 2 Cal.5th 1150, 1158 (Gutierrez).) The trial court assesses the prosecutor's credibility and considers such factors as the prosecutor's demeanor, the reasonableness or improbability of the prosecutor's explanations, and whether the justification is based on accepted trial strategy. (Id. at pp. 1158-1159.) "To satisfy herself that an explanation is genuine, the presiding judge must make 'a sincere and reasoned attempt' to evaluate the prosecutor's justification, with consideration of the circumstances of the case known at that time, her knowledge of trial techniques, and her observations of the prosecutor's examination of panelists and exercise of for-cause and peremptory challenges." (Id. at p. 1159.) 12 Implausible or fantastic justifications likely will be found to be pretextual. (Ibid.)
Additionally, at the third step of Batson/Wheeler review, we may engage in comparative juror analysis. (People v. Hardy (2018) 5 Cal.5th 56, 77 (Hardy).) Comparative juror analysis is circumstantial evidence that can be probative of purposeful discrimination (Miller-El v. Dretke (2005) 545 U.S. 231, 241 (Miller-El); People v. Lenix (2008) 44 Cal.4th 602, 622 (Lenix)) but is not necessarily dispositive (Hardy, supra, at p. 77). We compare challenged panelists with "similarly situated but unchallenged panelists who are not members of the challenged panelist's protected group." (Gutierrez, supra, 2 Cal.5th at p. 1173; Miller-El, supra, at p. 241.) The prospective jurors do not need to be "identical in every respect aside from ethnicity." (McDaniel, supra, 12 Cal.5th at p. 126.) "Rather, because the ultimate question before us concerns the prosecutor's motivations in exercising the challenge in question, we must ask whether there were any material differences among the jurors-that is, differences, other than [race or gender], that we can reasonably infer motivated the prosecutor's pattern of challenges." (People v. O'Malley (2016) 62 Cal.4th 944, 977.) Any "differences among the jurors generally will be more probative if they closely relate to reasons the prosecutor has stated for a peremptory challenge." (People v. Miles (2020) 9 Cal.5th 513, 544 (Miles); Hardy, at p. 77 [the differences "'must be materially similar in the respects significant to the prosecutor's stated basis for the challenge'"].) 13
We engage in comparative juror analysis even if the argument is raised for the first time on appeal if "the record is adequate to permit the urged comparisons." (Lenix, supra, 44 Cal.4th at p. 622; Gutierrez, supra, 2 Cal.5th at p. 1174.) Comparative juror analysis nevertheless is subject to inherent limitations when conducted for the first time on appeal. (Lenix, at pp. 622-624; Gutierrez, at p. 1174.) "On appellate review, a voir dire answer sits on a page of transcript. In the trial court, however, advocates and trial judges watch and listen as the answer is delivered. Myriad subtle nuances may shape it, including attitude, attention, interest, body language, facial expression and eye contact." (Lenix, at p. 622.) Moreover, "when conducting comparative juror analysis for the first time on appeal, we need not turn a blind eye to reasons the record discloses for not challenging other jurors." (Miles, supra, 9 Cal.5th at p. 543.)
"We review a trial court's determination regarding the sufficiency of tendered justifications with '"great restraint."'" (Gutierrez, supra, 2 Cal.5th at p. 1159.) We presume that the prosecutor exercised peremptory challenges in a constitutional manner. (Ibid.) We ordinarily review for substantial evidence a trial court's ruling on a Batson/Wheeler motion. (Ibid.) However, when the court "made a 'sincere and reasoned effort to evaluate the nondiscriminatory justifications offered, '" the court's conclusions are entitled to deference. (Ibid.; McDaniel, supra, 12 Cal.5th at p. 122.) 14
2. Peremptory Challenges and the Batson/Wheeler Motions
a. First Batson/Wheeler Motion
Prospective juror K.R. (Prospective Juror No. 1) lived at home with her parents, did not have any children, had a liberal studies bachelor's degree, was unemployed, and had previously been employed as a substitute instructional aide. The trial court instructed Prospective Juror No. 1 to speak louder. During questioning, defense counsel referred to Prospective Juror No. 1 as "shy" and indicated that she had "been pretty chill about not really sharing."
We refer to the prospective jurors by their initials to preserve their anonymity. We note, however, that all seven prospective jurors have Hispanic surnames, and the record does not demonstrate that any of these jurors were not Hispanic. (See People v. Trevino (1985) 39 Cal.3d 667, 686 [concluding that when "no one knows at the time of challenge whether a particular individual who has a Spanish surname is Hispanic, a showing that jurors are being excluded on the basis of surname alone constitutes a prima facie case of exclusion of a cognizable class"], disapproved on another ground in People v. Johnson (1989) 47 Cal.3d 1194, 1219.)
Prospective juror B.G. (Prospective Juror No. 2) was 19 years old, lived with her mother and grandparents, was unemployed, and was attending a charter school to obtain a high school equivalency certificate. Her teacher gave her schoolwork to do while on jury duty, which Prospective Juror No. 2 intended to complete at night. She preferred "to sleep in" but believed that she would be able to focus on the trial, even though she would be sleeping less than usual.
Prospective juror A.P. (Prospective Juror No. 3) lived with her parents, did not have any children, had a bachelor's degree in business administration, and worked as an 15 office manager for a construction company. The judge referred to Prospective Juror No. 3 as "soft-spoken" and had difficulty hearing her.
Defense counsel asked Prospective Juror No. 3: "Is it fun to disagree with others?" She responded, "Yeah." The prosecutor later asked Prospective Juror No. 3 what she meant by her answer, and Prospective Juror No. 3 said, "That I get nervous. And she had asked if I get nervous, and I said yes to that." The prosecutor told Prospective Juror No. 3 that she was worried about her because Prospective Juror No. 3 had expressed that she was shy. Prospective Juror No. 3 responded that she would "try not to" "be quiet and just say yes" during deliberations because of her "fears and shyness."
The prosecutor used peremptory challenges to excuse Prospective Juror Nos. 1, 2, and 3. Defense counsel objected on the basis of Batson/Wheeler, arguing that all these Hispanic women were similarly situated to other unexcused jurors. Defense counsel did not specify whether she was claiming that the prosecutor discriminated against these jurors on the basis of their race, gender, or both, nor did she specify which other "similarly situated" jurors she was referencing. The trial court found that defense counsel made a prima facie showing of facts sufficient to support an inference of discriminatory purpose but did not indicate whether the finding was on the basis of the prospective jurors' race, gender, or both.
The prosecutor explained that she excused these jurors because they were childless and unmarried, and she was interested in jurors who were "a little bit older" and would 16 "have life experience to apply to the facts of this case." Defense counsel countered that Prospective Juror Nos. 1 and 3 held bachelor's degrees and thus had life experience.
The prosecutor provided the following additional reasons for excusing these three jurors: She worried that Prospective Juror No. 3 was so shy and nervous that she would just agree with others and not "make her own decisions." The prosecutor was similarly concerned about Prospective Juror No. 1's shyness and timidness, given that the juror needed to be asked by the court to speak up. The prosecutor worried that Prospective Juror No. 1 had said yes to questions to avoid speaking up. As to Prospective Juror No. 2, the prosecutor was concerned about the juror needing to study in the evenings.
The trial court denied the motion, finding the prosecutor's reasons "inherently plausible, . . . genuine and sincere" and "supported by the record." The court also noted that the prosecutor had previously accepted the jury once and the accepted panel included "other Hispanic females." No information was provided about the specific composition of the jury the prosecutor had previously accepted.
b. Second Batson/Wheeler Motion
Prospective juror A.Z. (Prospective Juror No. 4) lived with her parents and three siblings, did not have any children, had a master's degree in education, and worked as a sixth grade teacher. Prospective Juror No. 4 described herself as being stubborn. She also explained that she might have difficulty trusting a child witness because a child had once written something about a colleague of hers that Prospective Juror No. 4 understood 17 to be false. Prospective Juror No. 4 said that her experience would not affect her and that she would not "start out" disbelieving any child witnesses.
Prospective juror D.G. (Prospective Juror No. 5) lived with her boyfriend, did not have any children, had a bachelor's degree in psychology, and worked as an office manager at a retail furniture store. Defense counsel asked Prospective Juror No. 5 whether she worried about how it would feel to have others disagree with her, and the juror responded: "I don't really enjoy confrontation. I won't-I won't necessarily change my opinion, but I also probably will be quiet." She further explained that "if anyone else was talking, [she] would just listen" and that she preferred "to analyze things."
Prospective juror L.R. (Prospective Juror No. 6) lived with her parents, did not have any children, had a bachelor's degree in liberal studies and a teaching certificate, and worked as a third grade teacher.
The prosecutor used peremptory challenges to excuse Prospective Juror Nos. 4, 5, and 6. Defense counsel renewed the Batson/Wheeler motion, arguing that these three dismissed prospective jurors also were "Latinas" who had "plenty of life experience," as reflected by Prospective Juror Nos. 5 and 6 having bachelor's degrees and Prospective Juror No. 4 having a master's degree. Again, defense counsel did not specify whether she was claiming discrimination on the basis of the jurors' race, gender, or both. The trial court found without elaboration: "I will make a finding sufficient[.] I need a justification." 18
With respect to Prospective Juror No. 6, the prosecutor explained that she had previously accepted the panel with Prospective Juror No. 6. However, even then, the prosecutor was concerned about Prospective Juror No. 6's marital status, majoring in liberal studies, living with her parents, and being "too questioning [of] everything that's going on." Despite the prosecutor having kept Prospective Juror No. 6 on the panel with these reservations, the prosecutor chose to excuse her when the composition of the panel changed to having "too many very young people who don't have children and who are not married."
The prosecutor further explained that she was concerned in general about these jurors' "experience" and "their responses to my questions." She wanted to ensure that "we have an experienced jury panel who have some maturity and life experience." She did not want "a jury who is a lot of very young people who are not going to understand the very delicate, intricate issues in this case, which involves testimony of children and expert witnesses."
The prosecutor also explained that the majority of potential jurors were Hispanic women, so it was inevitable that she "excused a few of them, unfortunately, they're going to have to be Hispanic women because that's all we have." Moreover, the prosecutor noted that she had "accepted the panel several times with Hispanic ladies" and that there were four other jurors on the panel who were or appeared to be Hispanic females. The names of those four jurors were redacted, so it appears as though they were seated on the final jury panel as juror nos. 1, 4, 9, and 10. Defense counsel argued that two of those 19 women appeared Caucasian. The trial court did not make any determination about their ethnicity and acknowledged that the jurors had not been questioned about it. The trial court explained that "it would, in all likelihood, be impermissible to ask somebody what their ethnicity and/or culture might be, and I know that I'm extremely uncomfortable when that happens." Consequently, the court stated that "we're dealing with what we conclude by observation to be in the circumstance."
The trial court denied the second Batson/Wheeler motion. The court specifically found "inherently plausible" and "supported by the record" the prosecutor's stated reasons for excusing Prospective Juror No. 6 only when the overall age of the panel became too young. The court did not believe that the decision to excuse Prospective Juror No. 6 was based on her membership in a protected class. The court commented: "[J]ury selection specifically is oftentimes a feel for the totality of the panel. I have no reason to dispute the decision made by the prosecutor." The trial court did not make any specific findings regarding Rivas's challenge to Prospective Juror Nos. 4 and 5.
c. Third Batson/Wheeler Motion
Prospective juror Y.G. (Prospective Juror No. 7) lived with her parents and siblings, did not have any children, was a licensed attorney, and worked as a law clerk for a federal magistrate judge. In her capacity as a law clerk, she worked mainly on civil matters and did not consider herself an expert in criminal law. In law school, she performed research for a professor who was preparing a writ in federal court for a defendant who had received the death penalty decades earlier. Prospective Juror No. 7 20 was not emotionally invested in the outcome of that case. After her first year of law school, she applied to work for the district attorney's office and the public defender's office. In addition, she worked for a nonprofit organization that assisted victims of violent crimes. She said that she would fairly judge the facts.
The prosecutor excused Prospective Juror No. 7, and defense counsel renewed the Batson/Wheeler motion, not specifying whether she believed this prospective juror was discriminated on the basis of her race, gender, or both. The prosecutor explained that she was excusing Prospective Juror No. 7 because she "personally helped a[n] appeal[] on a death row murder conviction. While she told us that it didn't matter, it was a legal issue for her, I am not comfortable having a person who has single-handedly worked on a defense-criminal defense appeal of a murder conviction sitting to make a decision of guilt or innocence in this case." She added: "We still have a young person with no children, unmarried, and, also, now has worked on a defense panel." The prosecutor concluded by saying that she excused Prospective Juror No. 7 based on the "totality of the circumstances" with the most significant concern being her work "on a defense case of a murder conviction."
The trial court did not make an explicit finding about whether defense counsel had made a prima facie showing of discrimination. After the prosecutor explained why she had excused Prospective Juror No. 7, the court denied the motion. The court believed 21 that Prospective Juror No. 7 would be a good juror but accepted that the prosecutor's reason for excusing her was an "inherently plausible reason" and "sincere and genuine."
Under these circumstances," 'we infer an "implied prima facie finding" of discrimination and proceed directly to review of the ultimate question of purposeful discrimination.'" (Hardy, supra, 5 Cal.5th at p. 76.)
3. Analysis
a. Prospective Juror No. 7
On appeal, Rivas first argues that the prosecutor's explanation for excusing Prospective Juror No. 7 "on grounds of limited life experience was not sincere, because the prosecutor also dismissed her for having too much life experience"-namely, Prospective Juror No. 7's work on behalf of a criminal defendant sentenced to death. According to Rivas, "[t]he two excuses given as to [Prospective Juror No. 7] (too much experience and too little experience) are irreconcilable with a sincere reason for the challenge." We disagree.
Substantial evidence supports the trial court's acceptance of the prosecutor's nondiscriminatory justification for excusing Prospective Juror No. 7 on the basis of work she did while in law school. Prospective Juror No. 7's advocacy on behalf of a convicted murderer concerned the prosecutor and was the main reason she excused Prospective Juror No. 7. The prosecutor could be concerned that the legal work this prospective juror did on behalf of a convicted murderer could unconsciously or consciously bias her in favor of Rivas, regardless of the juror's promises to be fair. That is a legitimate, nondiscriminatory reason for excusing a juror. (See Trinh, supra, 59 Cal.4th at p. 242 [a prosecutor "'surely . . . can challenge a potential juror whose occupation, in the 22 prosecutor's subjective estimation, would not render him or her the best type of juror to sit on the case for which the jury is being selected'"].)
We reject Rivas's argument that the prosecutor's additional stated reasons about Prospective Juror No. 7's youth, childlessness, and marital status were inconsistent with also excusing Prospective Juror No. 7 on the basis of her legal work. As the People correctly observe, these reasons are not inherently inconsistent. Prospective Juror No. 7's work while she attended law school does not demonstrate that she was experienced in life in the ways the prosecutor desired, such as by being able to relate to the complexities of married life or to be able to assess the credibility of a child witness.
b. Comparative Juror Analysis
Rivas also argues that "[t]he prosecutor's excuse for challenging all seven of the subject Latina prospective jurors was demonstrably insincere when compared to her treatment of the seated jurors." Rivas singles out four female seated jurors for this analysis-Seated Juror Nos. 2, 5, 6, and 9. He did not make this argument in the trial court.
The record is inadequate for us to meaningfully compare the challenged and unchallenged jurors. The record contains no evidence about the seated jurors' race. The trial court did not directly ask the potential jurors about it. Instead, the trial court drew inferences from the prospective jurors' Hispanic surnames and their appearances. Regardless of the merits of inferences from such evidence (see, e.g., People v. Cruz (2008) 44 Cal.4th 636, 656 (Cruz) [prospective juror who acquired her Hispanic surname 23 through marriage is not Hispanic]), the record on appeal does not contain even this information as to the seated jurors. Rather, the seated jurors' names have been redacted from the record, and the record contains no other indication of their race or ethnicity. In describing the four seated jurors, Rivas provides a conclusory statement about their ethnicity without any citation to the record or explanation about how he acquired this information. Such conclusory statements are not sufficient for us to verify the jurors' group identity to engage in comparative juror analysis. In addition, we do not have information about the complete composition of the final jury panel, which could inform our analysis. (See, e.g., McDaniel, supra, 12 Cal.5th at p. 124 ["But the fact that the prosecution accepted a panel with three Black jurors when it had enough remaining peremptory challenges to strike them suggests that the prosecutor did not harbor bias against Black jurors"].)
Even if we assume for the sake of argument that the four specified seated jurors were Hispanic (see Gutierrez, supra, 2 Cal.5th at p. 1174), Rivas's argument still fails. With respect to the comparative juror analysis, Rivas argues: "The fact that the prosecutor kept on the jury a childless and unmarried woman who was non-Hispanic ([Seated Juror No. 6]), an unmarried woman with an adult child and no education beyond high school who was a non-Hispanic ([Seated Juror No. 2]), a non-Hispanic unmarried woman ([Seated Juror No. 5]), and a possibly non-Hispanic unmarried, childless woman with ([Seated Juror No. 9]) shows that the lack-of-life-experience excuse was not sincere." Rivas's argument lacks merit for several reasons. 24
First, any possible gender discrimination claim fails in this comparative juror analysis. All four of the identified seated jurors are women. Comparing members of the same protected class as the challenged jurors does not support a finding of purposeful discrimination on the basis of membership in that group. (See Gutierrez, supra, 2 Cal.5th at p. 1173 [comparative juror analysis compares "similarly situated but unchallenged panelists who are not members of the challenged panelist's protected group"].) We therefore analyze whether comparative juror analysis supports finding that the prosecutor's reasons for excusing the challenged jurors were pretext for excusing them on the basis of their race or ethnicity.
Second, the record does not indicate that Seated Juror No. 9 is not Hispanic, so she must be excluded from the analysis. Rivas claims that Seated Juror No. 9 is "possibly non-Hispanic," but he does not cite the record for this proposition. And the record does not support this characterization. In the trial court, defense counsel identified Seated Juror No. 9 as one of the remaining "Latinas" on the jury. The prosecutor later referred to Seated Juror No. 9 as one of several "Hispanic ladies" remaining on the jury. This is the only information contained in the record about this juror's race or ethnicity. Because the evidence indicates that Seated Juror No. 9 belongs to the same protected group as the challenged jurors, we do not consider Seated Juror No. 9 in analyzing whether the challenged jurors were improperly excused. (Cruz, supra, 44 Cal.4th at pp. 655-656 [refusing to "consider the propriety of the trial court's ruling that no prima facie case had been made out with regard to [the prospective juror], as the record reflects she was not of 25 Hispanic origin in the first instance, but rather was White, and for that reason she was not a member of the cognizable group identified by [the] defendant"].)
Third, there is a material difference between two of the remaining identified three seated jurors and all seven of the challenged jurors-Seated Juror Nos. 2 and 5 had adult children. Seating those jurors comports with the prosecutor's explanation that she wanted a mature jury that would be able to "understand the very delicate, intricate issues in this case, which involves testimony of children and expert witnesses." Childlessness is a legitimate, race-neutral reason for excluding prospective jurors (Trinh, supra, 59 Cal.4th at p. 242; People v. Jones (2017) 7 Cal.App.5th 787, 805-806) and is particularly salient here in light of the critical testimony from Rivas's minor son. While the unchallenged jurors need not be identical to the challenged jurors in every respect, they "'must be materially similar in the respects significant to the prosecutor's stated basis for the challenge.'" (Hardy, supra, 5 Cal.5th at p. 77.) Given that Seated Juror Nos. 2 and 5 were not materially similar to the challenged jurors in a key respect identified as concerning to the prosecutor, the prosecutor's retention of these jurors has no tendency to show that the prosecutor's stated reasons for excusing the challenged jurors was pretextual. (Ibid.) 26
Rivas also appears to claim that the jurors were improperly excused on the basis of their marital status. When the prosecutor gave this reason for excusing the challenged jurors, defense counsel did not object that these justifications were themselves discriminatory. In any event, when Rivas's jury was empaneled, marital status was a legitimate ground on which to challenge jurors. (Trinh, supra, 59 Cal.4th at p. 242.) Relying on the legislative history for a new statutory enactment that became effective January 1, 2022 (Code Civ. Proc., § 231.7, subd. (i)), Rivas claims that prior law might be otherwise. The legislature's interpretation of what it believes to be the pre-enactment state of the law is not controlling. We are bound by Supreme Court precedent. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
Fourth, there are material differences relevant to the prosecutor's reasons for excluding each of the challenged jurors and Seated Juror No. 6-the last remaining seated juror identified by Rivas. In conducting this analysis, we may "consider nondiscriminatory reasons for a peremptory challenge that are apparent from and 'clearly established' in the record [citations] and that necessarily dispel any inference of bias." (People v. Scott (2015) 61 Cal.4th 363, 384 (Scott).)
Seated Juror No. 6 was similar to the challenged jurors in that she lived with family (her grandmother, her mother, and her adult brother) and was childless. But the record contains no evidence that she was shy or timid like Prospective Juror Nos. 1 and 3, which was one of the legitimate, nondiscriminatory reasons the prosecutor gave for excusing these jurors. The trial judge did not ask Seated Juror No. 6 to speak up, and the attorneys never referred to her as being soft-spoken, shy, or timid. Moreover, unlike Prospective Juror No. 5, Seated Juror No. 6 never expressed an aversion to confrontation, nor did she suggest that she would remain quiet during deliberations. Seated Juror No. 6 also never indicated that she might have difficulty believing a child witness, as Prospective Juror No. 4 did. In addition, unlike Prospective Juror No. 2, Seated Juror No. 6 was not attending school and thus would not have to complete any schoolwork at night, which could affect the amount of sleep she got and consequently her ability to focus during trial. Also, unlike Prospective Juror No. 6, Seated Juror No. 6 did not have a 27 bachelor's degree. She was a high school graduate. Finally, unlike Prospective Juror No. 7, Seated Juror No. 6 never performed any legal research to assist a death row inmate.
These material, nondiscriminatory differences between Seated Juror No. 6 and the challenged jurors all closely relate to the justifications the prosecutor gave for excusing the challenged jurors (Miles, supra, 9 Cal.5th at p. 544) or were apparent from the record (as to Prospective Juror Nos. 4 and 5) (Scott, supra, 61 Cal.4th at p. 384), which suggests that the prosecutor's concerns about the challenged jurors were sincere and not merely a pretext for excusing these jurors on the basis of their race or ethnicity.
Finally, while the record does not disclose the full composition of the final jury panel, it does disclose that the jury had at minimum four female jurors whom the prosecutor identified as Hispanic. Defense counsel argued that two of those jurors were not Hispanic. Those jurors were on the panel before the prosecutor challenged Prospective Juror No. 7, so the prosecutor had at least one peremptory strike that she did not use to strike any of these jurors. That the prosecutor accepted a panel with at least two and possibly four (or more) Hispanic female jurors strongly suggests that the prosecutor did not harbor bias against Hispanic female jurors. (See McDaniel, supra, 12 Cal.5th at pp. 124-125.)
In sum, we conclude that the comparisons to seated jurors that Rivas presents for the first time on appeal do not establish that the trial court erred by accepting as genuine the prosecutor's proffered nondiscriminatory reasons for excusing the challenged jurors. (Trinh, supra, 59 Cal.4th at p. 244.) "'[T]he ultimate burden of persuasion regarding 28 racial motivation rests with, and never shifts from, the opponent of the strike.'" (Ibid.) We conclude that Rivas has not carried his burden.
B. Sufficiency of the Evidence
Rivas concedes that there was sufficient evidence that he acted with premeditation but argues that there was insufficient evidence that he acted with deliberation. He contends that the record does not contain substantial evidence that he engaged in substantially more reflection than may be involved in the mere formation of a specific intent to kill. We disagree.
In reviewing the sufficiency of the evidence, our role is limited. (People v. Cardenas (2020) 53 Cal.App.5th 102, 119, fn. 11.) "We review the entire record to determine whether it discloses reasonable and credible evidence to allow a rational trier of fact to determine guilt beyond a reasonable doubt. [Citation.] We draw all reasonable inferences in favor of the judgment. [Citation.] Matters of credibility of witnesses and the weight of the evidence are '"'the exclusive province'"' of the trier of fact." (Ibid.)
"A murder that is premeditated and deliberate is murder in the first degree." (People v. Jurado (2006) 38 Cal.4th 72, 118 (Jurado); Pen. Code, § 189, subd. (a).) "'In this context, "premeditated" means "considered beforehand," and "deliberate" means "formed or arrived at or determined upon as a result of careful thought and weighing of considerations for and against the proposed course of action."'" (Jurado, supra, at p. 118.) Premeditation and deliberation involve "substantially more reflection than may be involved in the mere formation of a specific intent to kill," which is defined more by a 29 "mere unconsidered or rash impulse hastily executed." (People v. Thomas (1945) 25 Cal.2d 880, 900-901 (Thomas); People v. Boatman (2013) 221 Cal.App.4th 1253, 1270 (Boatman).) "The process of premeditation and deliberation does not require any extended period of time. 'The true test is not the duration of time as much as it is the extent of the reflection.'" (People v. Mayfield (1997) 14 Cal.4th 668, 767 (Mayfield), abrogated on another ground by Scott, supra, 61 Cal.4th at p. 390, fn. 2.) "Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly . . . ." (Thomas, supra, at p. 900; Mayfield, supra, at p. 767.)
"A reviewing court normally considers three kinds of evidence to determine whether a finding of premeditation and deliberation is adequately supported-preexisting motive, planning activity, and manner of killing . . . ." (Jurado, supra, 38 Cal.4th at p. 118; People v. Anderson (1968) 70 Cal.2d 15, 26-27 (Anderson).) These guidelines- referred to as the Anderson factors-"are descriptive and neither normative nor exhaustive," so "reviewing courts need not accord them any particular weight." (People v. Halvorsen (2007) 42 Cal.4th 379, 420.)
Rivas argues that there is insufficient evidence that he acted with deliberation under any of the Anderson factors-motive, planning activity, and manner of killing. We are not persuaded. There was evidence of motive, planning, and manner of killing from which a jury could conclude that Rivas acted with both premeditation and deliberation.
There was strong evidence that Rivas was motivated by jealousy. Immediately after killing Dixie, Rivas told both his son and the 911 dispatcher that he killed Dixie 30 because she was cheating on him and going to leave him. (See People v. Disa (2016) 1 Cal.App.5th 654, 666 [motive demonstrated by the defendant's jealousy and evidence that the victim was "trying to kick [the defendant] out of his own house and was insulting him"].) Further evidence corroborates that Rivas's motive to kill Dixie was his jealousy. Rivas believed that Dixie was having an affair with a coworker, whom she had lied to Rivas about seeing less than 24 hours earlier and had seen two nights earlier. Dixie wanted to divorce Rivas and told him that she was leaving him and the children to be with her coworker. In addition, Dixie's brother described Rivas as "losing it" on the previous day, when Rivas told him about Dixie's purported affair. From all of this evidence, the jury could reasonably infer that jealousy and anger about Dixie leaving motivated Rivas to kill her.
Rivas argues that evidence of motive was lacking because it was undisputed that he was "intent on keeping his family together, which made the killing senseless-even to [Rivas] when he realized what he had done." The argument fails. The jury was not required to credit Rivas's testimony that he wanted to fix his marriage. We cannot "reweigh the evidence or reverse the jury's verdict merely because a reasonable jury might have drawn the inferences suggested by defendant." (People v. Pettigrew (2021) 62 Cal.App.5th 477, 493 (Pettigrew).) Moreover, the argument wrongly assumes that Rivas's motive for killing Dixie must have been rational. (Id. at p. 495.) Even if Rivas's motivation "was totally unreasonable," "the incomprehensibility of the motive does not 31 mean that the jury could not reasonably infer that [Rivas] entertained and acted on it." (People v. Pensinger (1991) 52 Cal.3d 1210, 1238.)
As to planning, Rivas argues that there was no evidence that he planned to kill Dixie, because there is "no evidence [he] ever considered killing Dixie before the early morning hours of the 19th." Assuming for the sake of argument that such evidence does not exist, evidence that Rivas planned to kill Dixie only in the hours before he actually killed her does not demonstrate lack of planning. "'The process of premeditation and deliberation does not require any extended period of time.'" (People v. Salazar (2016) 63 Cal.4th 214, 245.) While evidence of extensive, early planning might have strengthened the case for premeditation and deliberation, we analyze "whether the evidence was sufficient, not whether hypothetical evidence would have strengthened the prosecution's case." (People v. Vargas (2020) 9 Cal.5th 793, 822.)
In any event, from Rivas's account of what happened, there was evidence that Rivas planned to kill Dixie beforehand: Dixie was sleeping in the bedroom with a knife under her pillow. And, according to Rivas, when he saw the knife, he recalled that at some point earlier, Dixie had pleaded with Rivas not to kill her. The jury could reasonably infer from this evidence that Dixie had reason to believe that Rivas had planned to kill her before she went to bed that night.
There was further evidence of planning during the attack. The jury could reasonably infer from Rivas's account that after discovering the knife under Dixie's pillow Rivas became enraged, or as he described it, "offensive," and developed the plan 32 to kill Dixie in that moment, so he returned the baby to the living room to keep her safe. Also from Rivas's account, the jury could reasonably infer that Rivas planned to kill Dixie after she told him that she was going to leave him and their children to be with another man, which he admitted angered him. The jury could reasonably infer that Rivas reacted to that information by deciding that killing Dixie would be better than seeing her romantically involved with another man. Either way, the evidence of the attack, even as recounted by Rivas, supports a reasonable inference that there was more than "adequate time" after Rivas discovered the knife or learned that Dixie was leaving for Rivas "to have reached the deliberate and premeditated decision to kill," (People v. San Nicolas (2004) 34 Cal.4th 614, 658 (San Nicolas)) as opposed to a "mere unconsidered or rash impulse hastily executed" (Thomas, supra, 25 Cal.2d at p. 901). Rivas has substantially more time than the defendant in San Nicolas, who saw the victim's reflection in the mirror and then turned around and stabbed her. (San Nicolas, supra, at p. 658.) The Supreme Court explained that "[t]his brief period between seeing [the victim's] reflection and stabbing her [was] adequate for [the] defendant to have reached the deliberate and premeditated decision to kill" the victim. (Ibid.)
Contrary to Rivas's argument, his remorsefulness, hysteria, and despair after the killing do not negate the inference that he acted deliberately when he killed Dixie. Again, the jury could have inferred from Rivas's post-killing hysteria that he did not plan to kill Dixie, but it was not required to. (Pettigrew, supra, 62 Cal.App.5th at p. 493.) Instead, the jury could have reasonably inferred that Rivas planned to kill Dixie but 33 immediately regretted it after killing her, perhaps because his son saw him kill Dixie and he realized how the killing affected his son.
Rivas's reliance on Boatman, supra, 221 Cal.App.4th 1253, in which this court found insufficient evidence of premeditation and deliberation, is misplaced. In Boatman, there was no evidence of planning and little to no evidence of motive. (Id. at pp. 1267-1268.) As we have explained, evidence of both planning and motive was present here.
The manner of killing also tends to show that Rivas acted deliberately. The jury could reasonably infer premeditation and deliberation from the number of stab wounds that Dixie sustained and from the location of those wounds, particularly the one that severed her carotid artery. (San Nicholas, supra, 34 Cal.4th at pp. 658-659.)
In sum, we conclude that there is substantial evidence supporting the jury's finding that Rivas committed a premeditated and deliberate murder. We therefore affirm the first degree murder conviction.
DISPOSITION
The judgment is affirmed.
We concur: MILLER Acting P. J., SLOUGH J. 34