Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Tulare County No. VCF193528A. Gary L. Paden, Judge.
Rex Williams, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Assistant Attorney General, Charles A. French and Peter H. Smith, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Wiseman, Acting P.J., Levy, J. and Gomes, J.
On November 2, 2007, Ramon Rivera and two other men robbed the owner of a Richgrove minimart of about $5,000 at gunpoint. A jury found him guilty of second-degree robbery and found a personal-firearm-use allegation true. (Pen. Code, §§ 211, 212.5, subd. (c), 12022.53, subds. (a)(4), (b).) The trial court imposed an aggregate 13-year term (the three-year midterm on the robbery and the consecutive 10-year term on the enhancement).
Later statutory references are to the Penal Code.
ISSUES
On appeal, Rivera argues that the trial court committed reversible error by finding that he failed to make a prima facie case during jury selection of discriminatory use by the prosecutor of peremptory challenges. We affirm the judgment.
DISCUSSION
Before discussing the law, we turn to the record. After the trial court finished questioning the first panel, Rivera’s trial attorney challenged for cause two prospective jurors who stated that an officer’s testimony is given greater weight than that of anyone else who testifies. With no objection by the prosecutor, the trial court dismissed both. After both counsel passed for cause, the prosecutor exercised three, and Rivera’s trial attorney exercised two, peremptory challenges.
Just before the noon recess, Rivera’s trial attorney made an off-the-record Batson/Wheeler motion that he put on the record after the break. “There were three peremptories that the prosecutor did and all three of them happened to be Hispanic,” he said. “My client is Hispanic and those people were (Badge Number 887468), (Badge Number 781311) and (Badge Number 769417) and I think that’s all I need to do is make that, that prima facie showing.”
Batson v. Kentucky (1986) 476 U.S. 79 (Batson); People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler), overruled in part by Johnson v. California (2005) 545 U.S. 162, 168 (Johnson).
“Would you like to respond to this issue[?],” the trial court inquired, “or respond to the issue whether a prima facie case has been shown[?]” The prosecutor replied, “I don’t think that just because the three names of the individuals that, that shows anything. I mean, there’s [sic]still other jurors or potential jurors on the panel with Latino or Hispanic surnames and I don’t think at this point there’s been any showing that any violation has occurred on my part.”
The trial court stated, “I don’t find a prima facie case has been shown either. (Badge Number 887468), I could not tell whether he was Philippino [sic] decent [sic] or Spanish decent [sic] or a combination thereof. I felt confident someone would kick him off quite frankly because when he responded to the questions on the board I understood about 20 percent of what he said, so I just did not see him sticking around as a juror only because of the communication issue.” The trial court concluded, “Other than that, we still have Hispanic names on the, on the panel of 11 that are left, so at this point I think your attempt to establish a prima facie case is premature.” The record shows no later attempt by Rivera’s trial attorney to make a prima facie showing.
At that juncture, the trial court called seven new prospective jurors, excused one for cause on its own motion with no objection by either counsel, and called one more new prospective juror. After questioning of the new prospective jurors ended, both counsel passed for cause, Rivera’s trial attorney exercised two peremptory challenges, and the prosecutor exercised none, at which point the clerk swore the jury.
On a Batson/Wheeler motion, “the issue is not whether there is a pattern of systematic exclusion; rather, the issue is whether a particular prospective juror has been challenged because of group bias.” (People v. Avila (2006) 38 Cal.4th 491, 549 (Avila).) The trial courts engage in a three-step constitutional analysis of peremptory challenges. 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. Second, once the defendant has made out a prima facie case, the burden shifts to the prosecution to explain adequately the racial exclusion by offering permissible race-neutral justifications for the peremptory challenges. Third, if a race-neutral explanation is tendered, the trial court must then decide whether the opponent of the peremptory challenges has proved purposeful racial discrimination. (Johnson, supra, 545 US. at p. 168.)
With reference to the first step of that three-step analysis, the defendant must show “that under the totality of the circumstances it is reasonable to infer discriminatory intent.” (People v. Kelly (2007) 42 Cal.4th 763, 779 (Kelly).) Where, as here, the record is not clear as to whether the trial court used the applicable “reasonable inference” standard or the former “strong likelihood” standard, our duty is to review the record independently to determine if the record supports an inference that the prosecutor excused a juror on a prohibited discriminatory basis. (Ibid.)
Certain types of evidence may be especially relevant. (Kelly, supra, 42 Cal.4th at p. 779.) The party may show that his or her opponent struck most or all of the members of the identified group from the venire or used a disproportionate number of his or her peremptory challenges against the group. (Ibid.) The party may demonstrate that the prospective jurors in question share only one characteristic – membership in the group – and that in all other respects they are as heterogeneous as the community as a whole. (Ibid.) When appropriate, that showing may be supplemented by circumstances like the failure of the party’s opponent to engage the prospective jurors at issue in more than desultory voir dire or to ask them any questions at all. (Ibid.) Finally, although the defendant need not be a member of the excluded group, if he or she is, especially if the alleged victim is a member of the group to which the majority of the remaining jurors belong, those facts are relevant, too. (Id. at pp. 779-780.)
Here, there is no showing that the prosecutor struck most or all Hispanics from the venire. To the contrary, the trial court noted that there were still “potential jurors on the panel with Latino or Hispanic surnames.” There is no showing that the prosecutor used a disproportionate number of his peremptory challenges against Hispanics. First, one of the stricken prospective jurors (Badge Number 887468) was possibly of Filipino or Spanish descent or both. Second, the record is silent as to whether the prosecutor’s use of his peremptory challenges against Hispanic prospective jurors was statistically disproportionate. Only 20 percent of that prospective juror’s responses to questions was understandable, so the record shows he posed enough of a communication issue that the trial court “just did not see him sticking around as a juror” on that ground alone.
Likewise, there is no showing that the prospective jurors at issue shared only one characteristic – membership in the group – but otherwise were as heterogeneous as the community as a whole. To the contrary, the prospective juror of possibly Filipino or Spanish descent or both posed a communication issue that affected neither of the other two stricken prospective jurors. One of the other stricken prospective jurors (Badge Number 781311) said only, “Oh, cool,” when drawn to replace the prospective juror with the communication issue. The trial court spontaneously noted that “nobody has ever responded that way,” the prosecutor used his next peremptory challenge on that prospective juror, and the trial court added, “I guess it’s cool. You’ve been excused.” It is well settled that “peremptory challenges based on counsel’s personal observations” of a prospective juror’s demeanor, including “body language or manner of answering questions,” are not improper. (People v. Reynoso (2003) 31 Cal.4th 903, 917.) So of the three prospective jurors at issue, one who was possibly not Hispanic posed a communication issue (Badge Number 887468). Of the other two, both of whom were Hispanic, one posed a demeanor issue (Badge Number 781311).
Rivera’s trial attorney inquired of only two prospective jurors, and the prosecutor inquired of only one, before the prosecutor exercised three, and Rivera’s trial attorney exercised two, peremptory challenges. Neither Rivera’s trial attorney nor the prosecutor asked any questions of the five stricken prospective jurors. On that record, the prosecutor’s failure to ask the prospective jurors at issue any questions at all shows nothing. (See Kelly, supra, 42 Cal.4that p. 779.) Finally, Rivera is Hispanic; by inference from his name the owner of the minimart is not; but there is no showing whether Rivera or the owner is a member of the group to which the majority of the remaining prospective jurors belong. (Cf. id. at pp. 779-780.)
Our independent review of the record discloses no showing under a totality of the circumstances that an inference of discriminatory intent is reasonable. (Johnson, supra, 545 U.S. at p.168; Kelly, supra, 42 Cal.4th at p. 779.) The trial court’s finding that Rivera failed to make a prima facie case of discriminatory use of peremptory challenges by the prosecutor was not error.
DISPOSITION
The judgment is affirmed.