Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Fresno County Ct. No. F04904921-4, Gary S. Austin, Judge.
Cynthia A. Thomas, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Stephen G. Herndon and Alice Su, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Levy, Acting P.J., Hill, J., and Kane, J.
A jury convicted appellant Darlene Sanchez of second degree murder (Pen. Code, § 187, subd. (a)). The court imposed a sentence of 15 years to life in prison.
On appeal, appellant’s sole contention is that the People used a peremptory challenge to remove an African-American potential juror from the jury panel solely on the basis of race, in violation of appellant’s rights under the United States and California Constitutions. (See Batson v. Kentucky (1986) 476 U.S. 79 (Batson) and People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler).) We will affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Instant Offense
Because of the nature of the issues raised on appeal, a brief summary of the facts will suffice.
On April 28, 2003, police and emergency medical personnel, responding to a report that a person had died, went to a house on East Lewis Street in Fresno. When police arrived, they found a child, S.G., lying on a couch in a bedroom. Paramedics administered cardiopulmonary resuscitation and transported S.G. to a hospital, where a physician determined she was dead.
Appellant was S.G.’s mother. S.G. was placed in foster care when she was 10 days old, but at the time of her death she was living with her mother and four of her seven siblings.
S.G. was two years seven months old at the time of her death. The pathologist who performed the autopsy testified that S.G. was in “a severe state of malnutrition and emaciation” and that she died of dehydration and starvation that occurred over a period of weeks.
S., age 17 at the time of trial and one of S.G.’s brothers, testified that appellant would place S.G. in a closet “whenever [S.G.] would get in trouble.” R., one S.G.’s sisters, was in third grade at the time of trial. She testified that sometimes appellant, for dinner, “would make fries or something,” but S.G. would not eat with the rest of the family because she was “[i]n a closet.” R. testified that no one prepared meals for S.G.
Voir Dire
R.V. was in the first group of potential jurors called for voir dire. The court asked the group, “Are there any of you, members of your family, or close friends who have ever been employed by a law enforcement agency, either now or in the past?” R.V. responded, “I work at the airport public safety, and I work with police officers every day.” The court later asked if anyone had had a “very unpleasant experience with … law enforcement ….” R.V. responded that approximately 25 years ago, “somebody who got robbed and thought it was me, one of those look-a-like things. I was thrown to the ground. I didn’t like that at all.” When the court asked if that experience “might shape how [R.V.] would view the evidence,” R.V. responded, “In this case, no.”
Later, in response to questioning from the court, R.V. stated the incident occurred in Fresno. Defense counsel then asked, “In terms of your ability to be fair, are you certain that you can set that aside?” R.V. responded, “Oh, sure.” Later, on questioning by the prosecutor, R.V. stated, “… to get burnt like that, it stayed for a while, okay, it’s like I don’t want to look at a police officer again. I’m just saying, it stayed for a while. It eventually went away.”
The prosecutor also asked the panel if “anybody here, friends or family, [had] been charged with a crime by the [d]istrict [a]ttorney’s [o]ffice[.]” R.V. responded, “Close family,” the case resulted in “[i]ncarcerat[ion],” it occurred in Fresno and the family member was treated fairly by the District Attorney’s office. The prosecutor also asked, “Do you feel that the way the process was served was appropriate?” R.V. responded, “Yeah, it was okay.”
Later in the process, the court asked, “Are there any of you or members of your family who have ever been arrested or charged with an assaultive type of crime?” R.V. responded that he had a first cousin who was about his age, with whom he was close, and who, approximately 25 years earlier, in Fresno County, had been “convicted of murder.” R.V. indicated this was the same family member to whom he had referred earlier. The court asked, “Did you follow any of the proceedings?” R.V. answered, “Up until … he got convicted.” Finally, the court asked, “[Are] there any feelings that you have about what happened in his case, the agency, the prosecution of it, anything like that that would affect how you might decide this case?” R.V. responded, “No. No, sir.”
Immediately thereafter, prospective juror No. 39 (Juror 39) stated that approximately 25 years previously her brother had been convicted of assault with a deadly weapon in another county, “[a]nd it would not in any way affect” her ability to impartially do her duty as a juror.
A short time later, the prosecution exercised a peremptory challenge to excuse R.V.
Wheeler-Batson Motion
Defense counsel immediately informed the court he “[had] a matter of law and motion,” and moments later, outside the presence of the jury, defense counsel presented his Wheeler-Batson motion. He argued, “just based upon [his] viewing,” that R.V. appeared to be the only person of “African-American ethnicity”; R.V. was “candid and forthcoming with all his answers”; he “works with law enforcement on a daily basis”; he “indicated [his previous negative experience with law enforcement] would not play into his consideration”; he had “no bad feeling … with regard to the judicial system or to the handling of [the] matter” in which his cousin was convicted of murder; he “would and could be a fair and impartial juror”; and counsel’s “concern [was] that [R.V. was] the only apparent African American in the jury panel, [and] he has been excluded for that reason.”
The court ruled that the defense had made a prima facie showing that the prosecution had challenged R.V. on the basis of group bias, and asked the prosecutor to “articulate reasons explaining the exercise of the peremptory challenge against [R.V.]” The prosecutor responded: “The reason why the People struck [R.V.] was, we had hesitations with him when he mentioned the incident that he had 25 years ago where he was taken to the ground for mistaken identity. He did answer that that was a long time ago. He said there was lingering feelings and that they were there. That just played in the background on our check. [¶] I distinctly remember inquiring … whether anybody had any friends or family who are currently incarcerated or were charged. [R.V.] answered, yes, he had a family member that resulted in incarceration. What he neglected to mention, that that family member, and we learned today, was a cousin, a cousin that he was very close to, and the charge was homicide. Given that we had explained to the jury all yesterday that this was a homicide case, I felt that fact alone, that he was a family member, somebody who is close to him in custody on a homicide charge, I didn’t want to take the risk of him having any sympathy towards the defendant whatsoever.”
The prosecutor acknowledged that Juror 39, whom the prosecutor did not exclude, had a brother who had been convicted of assault with a deadly weapon, but the prosecutor found this person acceptable as a juror because (1) her brother’s case was not a homicide and thus was “much different,” and (2) she had “close associations with … foster parents who had adopted their kids.” This second factor was significant to the prosecutor because two prosecution witnesses were foster parents who had adopted children.
The court, after reiterating that it had found that the defense had made a prima facie showing of discrimination, found that the prosecutor had “articulated reasons for [the peremptory challenge] which are neutral,” and ruled as follows: “Ultimately, what the defense must show is that there was a discriminatory use. Given the explanation by the People, I am satisfied with their neutral reasons explaining the peremptory challenge and that I’m convinced now by the appropriate applicable evidentiary standard that the defense has not carried their burden to prove to the Court that the exercise was based upon a discriminatory basis and that it was actually neutral and a proper exercise of the challenge.”
DISCUSSION
As indicated above, appellant contends the court erred in rejecting the defense’s Batson-Wheeler challenge to the prosecution’s exclusion of prospective juror R.V.
Legal Standard
“Race-based use of a peremptory challenge violates the federal constitutional guaranty of equal protection of the law, as held in Batson, supra, 476 U.S. 79 …, and the state constitutional right to a jury drawn from a representative cross-section of the community, as held in Wheeler, supra, 22 Cal.3d 258 … [citations].” (People v. Jordan (2006) 146 Cal.App.4th 232, 245.)
“When a defendant moves at trial to challenge the prosecution’s use of peremptory strikes, the following procedures and standards apply. ‘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.” [Citation.] Second, once the defendant has made out a prima facie case, the “burden shifts to the State to explain adequately the racial exclusion” by offering permissible race-neutral justifications for the strikes. [Citations.] Third, “[i]f a race-neutral explanation is tendered, the trial court must then decide … whether the opponent of the strike has proved purposeful racial discrimination.” [Citation.]’” (People v. Lewis (2008) 43 Cal.4th 415, 469.) “‘“[T]he ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike.”’” (People v. Jordan, supra, 146 Cal.App.4th at p. 245.)
Here, the court found a prima facie case (unchallenged on appeal), thus shifting the burden to the prosecutor, and the prosecutor gave facially neutral reasons for excluding R.V. from the jury panel. We are therefore concerned with the third step of the analysis, whether there was purposeful racial discrimination. (People v. Silva (2001) 25 Cal.4th 345, 384.) “‘[T]he critical question in determining whether [a party] has proved purposeful discrimination at step three is the persuasiveness of the prosecutor’s justification for his peremptory strike.’” (People v. Lewis, supra, 43 Cal.4th at p. 469.)
In addressing that question, the court may consider, “‘among other factors … how reasonable, or how improbable, the explanations are; and by whether the proffered rationale has some basis in accepted trial strategy.’” (People v. Lewis, supra, 43 Cal.4th at p. 469.) “‘[I]implausible or fantastic justifications may (and probably will) be found to be pretexts for purposeful discrimination.’” (People v. Reynoso (2003) 31 Cal.4th 903, 916.) These principles notwithstanding, however, “The proper focus of a Batson/Wheeler inquiry, of course, is on the subjective genuineness of the race-neutral reasons given for the peremptory challenge, not on the objective reasonableness of those reasons .... All that matters is that the prosecutor’s reason for exercising the peremptory challenge is sincere and legitimate, legitimate in the sense of being nondiscriminatory. “‘[A] “legitimate reason” is not a reason that makes sense, but a reason that does not deny equal protection. [Citations.].’” (Id. at p. 924.)
Thus, a “prosecutor is entitled to exercise a certain number of peremptory challenges simply on a suspicion that the juror will be unfavorable to his or her cause ….” (People v. Pinholster (1992) 1 Cal.4th 865, 914.) “Jurors may be excused based on ‘hunches’ and even ‘arbitrary’ exclusion is permissible, so long as the reasons are not based on impermissible group bias.” (People v. Turner (1994) 8 Cal.4th 137, 165, overruled on another ground in People v. Griffin (2004) 33 Cal.4th 536, 555, fn. 5.) And “[n]owhere does Wheeler or Batson say that trivial reasons are invalid.” (People v. Johnson (1989) 47 Cal.3d 1194, 1218.) Accordingly, in evaluating the explanations proffered by the prosecutor, the trial court must inquire: “[W]as the reason given … a ‘legitimate reason,’ legitimate in the sense that it would not deny defendant [ ] equal protection of law [citation], or was it a disingenuous reason for a peremptory challenge that was in actuality exercised solely on grounds of group bias?” (People v. Reynoso, supra, 31 Cal.4th at p. 925.)
“The best evidence of whether a race-neutral reason should be believed is often ‘the demeanor of the attorney who exercises the challenge,’ and ‘evaluation of the prosecutor’s state of mind based on demeanor and credibility lies “peculiarly within a trial judge’s province.”’” (People v. Stevens (2007) 41 Cal.4th 182, 210.) Because the trial court is “in the best position to observe the prospective jurors’ demeanor and the manner in which the prosecutor exercised his peremptory challenges,” the trial court’s finding on the prosecutor’s motivation in striking a juror “is entitled to ‘great deference’ on appeal.” (People v. Reynoso, supra, 31 Cal.4th at p. 926; accord, People v. Watson (2008) 43 Cal.4th 652, 670 [reviewing court “‘presume[s] that a prosecutor uses peremptory challenges in a constitutional manner and give[s] great deference to the trial court’s ability to distinguish bona fide reasons from sham excuses’”].) “[W]e are mindful that ‘“[i]f the trial court makes a ‘sincere and reasoned effort’ to evaluate the nondiscriminatory justifications offered, its conclusions are entitled to deference on appeal.”’ [Citations.] In a case in which deference is due, ‘[t]he trial court’s ruling on this issue is reviewed for substantial evidence.’ [Citation.]” (People v. Huggins (2006) 38 Cal.4th 175, 227.)
Analysis
As indicated above, the prosecutor stated (1) that the incident that R.V. described in which he was manhandled by police after being falsely accused of a crime “played in the background” in the prosecution’s decision to exclude R.V., and (2) that he (the prosecutor) “did not want to take the risk” that the fact that R.V.’s cousin had been convicted of murder would create “sympathy” for appellant.
Appellant contends these reasons, though neutral on their face, were “implausible and pretextual for racial bias.” In support of this contention, appellant asserts as follows: R.V.’s unfortunate encounter with police occurred 25 years previously and the antipathy to police it engendered “eventually went away”; R.V. worked in airport security and thus was, “in a sense,” a peace officer himself; he worked with police officers on a daily basis; although several police officers testified at trial, their testimony was neither “critical” or “even necessary”; the prosecutor’s statement that R.V. “neglected to mention” that his cousin had been convicted of murder suggested the prosecutor thought R.V. had been “evasive” when, in fact, R.V. had honestly answered all questions put to him.
These factors do not render the prosecutor’s stated reasons implausible. R.V. indicated he was close to his cousin and followed his cousin’s trial all the way to its conclusion. There is nothing inherently implausible in the prosecutor’s assertion that he perceived a risk that the prospective juror’s sympathy for his relative could affect his ability to impartially do his duty as a juror, notwithstanding R.V.’s assurances on this point. Similarly, regardless of the importance of police testimony, it is not implausible that the prosecutor could harbor an honest concern that notwithstanding R.V.’s claim that his feelings of ill will toward police had dissipated, some such feeling might remain and affect his ability to impartially assess the evidence in a case in which law enforcement was aligned with the prosecution. (See People v. Johnson, supra, 47 Cal.3d at pp. 1215-1218 [prospective juror’s negative feelings about law enforcement may be valid basis for peremptory challenge].) Finally, although the prosecutor may have concluded incorrectly that R.V. purposely “neglected” to provide relevant information in response to questioning and had therefore been evasive, the record does not compel the conclusion that prosecutor did not reach this conclusion honestly. When we accord the proper deference to the trial court’s findings, we conclude substantial evidence supports the trial court’s conclusion that the race-neutral reasons given by the prosecutor for excluding Mr. R.V. were genuine and were not a pretext for racially discriminatory reasons.
Appellant also bases his claim of Batson-Wheeler error on a comparative analysis of other prospective jurors. Specifically, he first argues that the prosecutor’s acceptance of Juror 39, whose brother had been convicted of a violent crime, demonstrated that the prosecutor’s assertion that R.V.’s cousin’s murder conviction was a factor in his decision to exclude R.V. from the jury was a pretext designed to disguise racial prejudice. We disagree.
In conducting comparative juror analysis, we bear in mind that “the question is not whether we as a reviewing court find the challenged prospective jurors similarly situated, or not, to those who were accepted, but whether the record shows that the party making the peremptory challenges honestly believed them not to be similarly situated in legitimate respects.” (People v. Huggins, supra, 38 Cal.4th at p. 233.) Here, neither of the reasons given by the prosecutor for accepting Juror 39 were inherently implausible. Again, substantial evidence supports the court’s implied finding that those reasons were genuine.
Finally, appellant compares the prosecutor’s exclusion of R.V. with the treatment accorded two other prospective jurors. As appellant points out, prospective jurors M.D. and B.K., neither of whom were African-American, had relatives who had been convicted of murder, and yet the prosecutor, although he eventually exercised preemptory challenges as to both, accepted the panel that included B.K. several times before excluding him. This shows, appellant argues, “that for non-African-American jurors, the fact that they had relatives convicted of homicide crimes was less of a factor for excusal.”
We need not address the merits of this argument. Neither B.K. nor M.D. was impaneled until after appellant had raised, and the court had rejected, her Wheeler-Batson claim, and at no time thereafter did appellant renew that claim in the trial court. Therefore, the aspect of appellant’s Wheeler-Batson claim that is based on the treatment of M.D. and/or B.K. is not cognizable on this appeal. (People v. Lenix (2008) 44 Cal.4th 602, 624 [“trial court’s finding is reviewed on the record as it stands at the time the Wheeler/Batson ruling is made,” and “[i]f the defendant believes that subsequent events should be considered by the trial court, a renewed objection is required to permit appellate consideration of these subsequent developments”].)
DISPOSITION
The judgment is affirmed.