Opinion
C079798
07-23-2018
THE PEOPLE, Plaintiff and Respondent, v. KEENAN JOSEPH SIMS, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. P14CRF0744)
Defendant Keenan Joseph Sims drove with his child in the car while he was intoxicated. Convicted of child endangerment and other crimes and sentenced to six years, he appeals. He contends the judgment must be reversed because (1) the trial court improperly allowed the jury to see evidence of his prior conviction for driving under the influence, and (2) the prosecutor challenged male prospective jurors because they were males.
We conclude (1) the error in allowing the jury to see evidence of defendant's prior conviction for driving under the influence was harmless, and (2) the trial court properly ruled that the prosecutor did not base her peremptory challenges on the fact that prospective jurors were males.
We will affirm the judgment.
BACKGROUND
Around 6:00 p.m. on December 21, 2014, defendant drove up to a pub. His SUV had extensive damage to the front passenger side and it was making harsh, grinding noises as it moved. At least one of the airbags had deployed. Defendant entered the pub with his son, who was three or four years old, and they sat down at a table. Defendant ordered a beer for himself and a soda for the child. The waitress testified that defendant was not coherent. The child tried to talk to defendant, but defendant did not respond. Eventually, defendant passed out at the table. The waitress woke him up, but he was confused and did not know where he was. The waitress did not notice a smell of alcohol. Within just a few minutes, defendant left the restaurant with the child.
Around 6:30 p.m. on the same day, witnesses found defendant's SUV in a ditch just a quarter mile from the pub. Defendant was in the driver's seat, and his son was sitting on the front floorboard of the passenger side of the SUV.
A man in a truck also stopped and pulled defendant's SUV out of the ditch using a cable. Several more people stopped where the SUV had gone into the ditch.
Defendant alternated between being angry -- yelling and screaming -- and being calm. When he was angry, he pushed the pub waitress who had happened upon the scene. Defendant staggered as he tried to walk.
According to one of the witnesses, defendant "grabbed his kid, slinged him in the front seat, and drove about 20 feet down the road." Defendant was unable to proceed because a fender was rubbing badly against a tire. He got out of his SUV. His son also got out of the vehicle. Some of the people, including the waitress, tried to hold the child, but he got away and started running down the middle of the road.
Defendant went after his son, and the waitress followed in her car. She asked defendant if he wanted a ride home, and defendant, seeming not to recognize her even though they had just interacted, accepted the offer. Defendant still appeared to be intoxicated. The waitress took defendant and his son back to the restaurant. Defendant was arrested at the restaurant. The officers who arrested him noted that he had bloodshot eyes, was unsteady on his feet, slurred his speech, and smelled of alcohol.
Defendant was combative with the officers. After he was placed in the back of a patrol car, he kicked out the window. A search of defendant's SUV revealed concentrated marijuana.
The district attorney charged defendant by information with nine counts, including two felonies and seven misdemeanors: (1) felony child endangerment (Pen. Code, § 273a, subd. (a)), (2) felony sale or transportation of marijuana (Health & Saf. Code, § 11360, subd. (a)), (3) misdemeanor possession of a controlled substance (Bus. & Prof. Code, § 4060), (4) misdemeanor vandalism (Pen. Code, § 594, subd. (b)(1)), (5) misdemeanor driving under the influence (DUI) (Veh. Code, § 23152, subd. (a)), (6) misdemeanor driving with a suspended license (Veh. Code, § 14601.1, subd. (a)), (7) misdemeanor driving with a suspended license after a DUI conviction (Veh. Code, § 14601.2, subd. (a)), (8) misdemeanor driving with a suspended license after refusal to take a chemical test (Veh. Code, § 14601.5, subd. (a)), and (9) misdemeanor hit and run (Veh. Code, § 20002, subd. (a)).
Defendant pleaded no contest to the misdemeanor counts of possession of a controlled substance (count 3), vandalism (count 4), and driving with a suspended license after a DUI conviction (count 7), and the trial court dismissed the misdemeanor counts of hit and run (count 9) and driving with a suspended license after refusal to take a chemical test (count 8). The trial court declared a mistrial on the felony count of sale or transportation of marijuana (count 2), and a jury convicted defendant of felony child endangerment (count 1), misdemeanor DUI (count 5), and misdemeanor driving with a suspended license (count 6).
The trial court sentenced defendant to the upper term of six years for child endangerment (count 1). It imposed concurrent terms for the misdemeanor convictions and stayed the sentence for driving with a suspended license (count 6).
DISCUSSION
I
Defendant contends the judgment must be reversed because the jury was accidentally given a packet concerning a prior DUI conviction.
When the jury retired to deliberate, the trial court sent in exhibits. The trial court mistakenly included exhibit 23, which was a packet concerning defendant's conviction in 2014 of driving under the influence and driving with a suspended license. The trial court had bifurcated the proceedings involving the prior convictions and had ruled that exhibit 23 would not be shown to the jury.
The trial court informed the parties that the jury had sent out a question about whether it could use exhibit 23 in its deliberations. The trial court and parties agreed that exhibit 23 was not intended for the jury room, but instead would be relevant to bifurcated proceedings before the trial court. The trial court said it would direct the jury to give exhibit 23 to the bailiff. Defense counsel requested an admonition to the jury, and the prosecutor agreed. The trial court drafted an admonition, which it gave to the jury, as follows: "You cannot consider Exhibit 23. Please return Exhibit 23 to the bailiff. Do not allow anything in the content of Exhibit 23 to enter into your deliberations in any way."
Defendant now contends that allowing the jury to see exhibit 23, revealing that he had prior convictions for driving under the influence and driving with a suspended license, was prejudicial error. We conclude the error was harmless.
When the jury innocently sees evidence it was inadvertently given, there is no jury misconduct. Instead, it is an " 'error of law' " and is reversible only "if it is reasonably probable that a result more favorable to the defendant would have been reached in the absence of error. [Citations.]" (People v. Cooper (1991) 53 Cal.3d 771, 836.)
Applying that standard, we conclude that it is not reasonably probable defendant would have obtained a more favorable result if the jury had not seen exhibit 23. The evidence in support of the convictions was strong. In addition, the error was discovered while the jury was deliberating, and the trial court both withdrew the exhibit from the jury and instructed the jury not to consider the exhibit in its deliberations. We presume the jury understood and applied the trial court's instructions, including the instruction not to consider evidence. (People v. Romero and Self (2015) 62 Cal.4th 1, 28.)
Nevertheless, defendant argues the error was prejudicial because the evidence of defendant's guilt on the child-endangerment count was weak. We disagree.
Defendant writes: "The prosecutor argued in her closing it was not one event that led to child endangerment, rather it was the course of conduct through the entire evening that amounted to child endangerment. The fact that [defendant] had a prior DUI plays into the jury's consideration that he was likely to have committed another DUI on the date of the offense; therefore, more likely to have committed the charged crime. [Sic.]"
This argument is unpersuasive. The evidence that defendant was under the influence during the evening was overwhelming. Several witnesses testified that he was incoherent; he staggered about, he passed out; his speech was slurred; and his eyes were unable to focus. The evidence was also overwhelming that defendant drove in that condition with the child in the car.
Defendant also argues that the jury deliberated for a full day and had questions for the trial court. But that shows neither that the jury considered the prior convictions in its deliberations nor that it allowed such consideration to influence its verdict.
It is not reasonably probable defendant would have obtained a better result if the jury had not seen Exhibit 23.
II
Defendant next contends the trial court, after finding that defendant had made a prima facie showing of an inference of discriminatory purpose in the prosecutor's challenges to male prospective jurors, erred by concluding that the prosecutor did not unconstitutionally strike males from the jury in violation of Batson v. Kentucky (1986) 476 U.S. 79, 89 (Batson) and People v. Wheeler (1978) 22 Cal.3d 258, 276-277 (Wheeler).
"Both the United States and California Constitutions prohibit discriminatory use of peremptory strikes. (Batson, supra, 476 U.S. at p. 89; Wheeler, supra, 22 Cal.3d at pp. 276-277; People v. Gutierrez (2017) 2 Cal.5th 1150, 1157-1159.) To assess whether such prohibited discrimination has occurred, our inquiry under Batson/Wheeler follows three distinct, familiar steps. First, the party objecting to the strike must establish a prima facie case by showing facts sufficient to support an inference of discriminatory purpose. (Johnson v. California (2005) 545 U.S. 162, 168 (Johnson).) Second, if the objector succeeds in establishing a prima facie case, the burden shifts to the proponent of the strike to offer a permissible, nonbiased justification for the strike. [(Ibid.)] Finally, if the proponent does offer a nonbiased justification, the trial court must decide whether that justification is genuine or instead whether impermissible discrimination in fact motivated the strike. (Ibid.)" (People v. Reed (2018) 4 Cal.5th 989, 999 (Reed).)
Of course, "[p]eremptory challenges may not be used to exclude male jurors solely because of a presumed group bias. [Citation.]" (People v. Williams (2000) 78 Cal.App.4th 1118, 1125.) We review the entire record when reviewing a claim of Batson/Wheeler error. Some of the relevant considerations are "whether a party has struck most or all of the members of the venire from an identified group, whether a party has used a disproportionate number of strikes against members of that group, whether the party has engaged those prospective jurors in only desultory voir dire, whether the defendant is a member of that group, and whether the victim is a member of the group to which a majority of remaining jurors belong. [Citation.]" (Reed, supra, 4 Cal.5th at pp. 999-1000.)
During jury selection, the defense made a Batson/Wheeler motion, noting that the prosecutor had used eight of her first nine peremptory challenges to strike males from the jury. Based on the numbers alone (eight of nine), the trial court determined that the defense had made a prima facie showing of discrimination. The prosecutor, therefore, gave her reasons for excusing the eight males, as follows:
W.S. took issue with the instruction that testimony of a single witness could establish a fact.
F.T. had a prior DUI conviction, and he believed that possessing marijuana was a victimless crime.
J.W. had strong opinions about the single-witness instruction and the instruction that the prosecution need not present all available evidence.
A.V. took issue with the single-witness instruction, and he was acquainted with the judge.
M.P. thought marijuana should be legalized, and he believed that alcohol makes people vulnerable.
H.K. took issue with the single-witness instruction.
B.B. had a prior DUI conviction, and he was ambivalent about marijuana.
D.F. was young and unmarried, and he had no children.
The defense argued that the single-witness-instruction reason for exercising peremptory challenges against males was pretextual because a female prospective juror (eventually, Juror No. 8) also commented on the single-witness instruction, but the trial court observed that Juror No. 8's comment was confusing and did not express the level of discomfort with the instruction that the male prospective jurors had expressed. The trial court concluded that the prosecutor did not exercise peremptory challenges based on unconstitutional group bias against men.
On appeal, defendant focuses on the prosecutor's single-witness-instruction justification for challenging four males. We will do likewise. Each of the four expressed some level of difficulty with the single-witness instruction.
During jury selection, the prosecutor told the prospective jurors about the single-witness instruction, explaining that the testimony of a single witness is sufficient to prove a fact.
W.S. said he had a problem with the single-witness instruction. He added: "Well, especially in the case of lineups and things, I don't believe what people think they see is what they actually saw sometimes." When the prosecutor asked whether his response would change if the witness were certain, he responded: "As long as there was nothing else contradicting it."
J.W. said, concerning whether he would be able to accept the testimony of a single witness, that he would "hesitate." Responding to a hypothetical in which a victim makes an in-field identification of a purse snatcher, J.W. said: "[T]hat's an instantaneous event and if something happens that quickly, the likelihood of having an absolute clear impression and recall I think is pretty low."
A.V. said: "I think it's difficult with just one person. I've been a victim of a crime, and I had to see a lineup. And, you know, I was kind of certain that was the guy, but, you know -- and I know it would not convict the guy."
H.K. said: "I would want to know if there's any -- any sort of relationship between the two people beforehand -- [¶] . . . [¶] -- which may be leading the person to say that -- to make that call." When the prosecutor asked H.K. to assume there is no relationship, H.K. said he would "probably be okay with it."
Invoking a comparative analysis, defendant notes that one of the females who eventually served on the jury expressed difficulty with the single-witness instruction. (See Miller-El v. Dretke (2005) 545 U.S. 231 [prosecutor's reasons for challenging jurors in protected class may be shown to be pretextual by prosecutor's failure to challenge other jurors for the same reasons].) In response to the prosecutor's question concerning whether any of the prospective jurors would have a problem with the single-witness instruction, Juror No. 8, a female, said: "I might if there was one other person and they were certain and they refuted it, and then it's their one decision against the other one decision, because you can't believe both of them if they're contradicting each other. So, I don't know, maybe that's just outside-the-box thinking, but that's what comes to my mind."
Defendant cites this as evidence that the prosecutor challenged the men because they were men and not because they expressed difficulty with the single-witness instruction. This argument fails, however, because the female juror's statements about the single-witness instruction were of a different nature and were really just a statement that other evidence might contradict the testimony of a single witness.
Also, the trial court observed that the males were more "vociferous" and "aggressive" about their responses concerning the single-witness instruction. The trial court added that the males were "very clear in indicating they had problems with this issue." Concerning Juror No. 8's statement, the trial court said: "I can't tell if [Juror No. 8] had a minor concern, a major concern, or something in between. But I certainly can tell that [W.S. and J.W.] did."
Although Juror No. 8's statement came in response to the prosecutor's question about the single-witness instruction, her response did not establish that she actually had a problem with the single-witness instruction. Therefore, the prosecutor's acceptance of Juror No. 8 as a juror does not show that the prosecutor's stated reason for challenging men because they had difficulty with the single-witness instruction was a pretext.
Defendant also argues that challenging jurors based on the single-witness instruction was a pretext because the prosecutor did not intend to rely on the testimony of a single witness. He writes: "The prosecutor actually had multiple witnesses and other evidence; her case did not rely on a single witness." But the prosecutor said during jury selection that she did not know yet what the testimony of each witness would be and that some observations were observations of a single witness. Under the circumstances, it cannot be said that focusing on the single-witness instruction was merely a pretext for challenging males. The prosecutor was entitled to prepare for the eventuality that some of the important facts would be established by a single witness.
The record therefore supports the trial court's finding that the prosecutor did not exercise peremptory challenges based on unconstitutional group bias.
DISPOSITION
The judgment is affirmed.
/S/_________
MAURO, Acting P. J. We concur: /S/_________
MURRAY, J. /S/_________
RENNER, J.