Opinion
A098187.
11-14-2003
THE PEOPLE, Plaintiff and Respondent, v. ANTONIO VASQUEZ, Defendant and Appellant.
Defendant Antonio Vazquez was convicted of the second degree murder of his ex-wife, Rosie Vazquez, and the premeditated attempted murder of her friend and neighbor, Hugo Camacho. The trial court sentenced defendant to life in prison. Defendant contends that the trial court committed Wheeler error (People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler)); that the county clerks failure to retain all juror questionnaires has denied him his constitutional right to an adequate record on appeal; and that the trial court erroneously admitted hearsay statements of the murder victim under Evidence Code section 1370. We disagree with defendants contentions and affirm.
I. FACTS
Under applicable standards of appellate review, we must view the facts in the light most favorable to the judgment of conviction, and presume in support of the judgment the existence of every fact which the court or jury could reasonably find from the evidence. (People v. Barnes (1986) 42 Cal.3d 284, 303; People v. Neufer (1994) 30 Cal.App.4th 244, 247.)
Defendant and Rosie Vazquez were married in 1989 but broke up in 1995. In 1999, defendant made unwanted visits to Rosies house on 52nd Avenue in Oakland. Defendant spied on Rosie. He harassed a male friend and co-worker of Rosies, Ramon Hernandez. Hernandez testified that in late summer 1999, defendant told Hernandez he would kill him if he saw Hernandez at Rosies house again. Defendant also hung around Rosies workplace.
Rosie became friends with her neighbor across the street, Hugo Camacho. On several occasions, Camacho saw defendant drive slowly by his house and stare at him like a "mad dog" or with an "ugly face." Camacho once saw defendant hiding in the bushes in the neighborhood and watching the street. Defendant had a pair of binoculars and was wearing dark glasses and a hat.
On December 17, 1999, at approximately 9:00 p.m., Rosie and Camacho came home from a party in Camachos car. Camacho parked in front of his house and got out. He saw a man running toward him. The man was dressed in black and wore a mask. When the man pulled his mask down, Camacho recognized him as defendant. Camacho positively identified defendant at trial and testified he was "one hundred percent" certain that defendant was the black-clad man who accosted him.
Defendant told Camacho, in Spanish, "Im going to kill you, asshole." Defendant raised a long gun, either a shotgun or rifle. Camacho turned to flee. Defendant shot him in the back. Camacho fell and heard a scuffle and more shots. Camacho stood and saw Rosie lying on the ground. Defendant chased Camacho and shot him in the shoulder. Defendant tried to shoot Camacho again but his long gun either jammed or misfired. Defendant then pulled a handgun and pointed it at Camachos face. He fired several shots, hitting Camacho in his arm that he raised to protect himself. Camacho ran away and managed to escape further harm.
Rosie had been killed by a single shot to the head. Police found an M-1 rifle at the scene, with a shell casing jammed in the ejection port. Four spent rifle shells were on the sidewalk. Defendant and Rosies son identified the rifle as defendants. Police also found a revolver. Five of its six rounds had been fired.
Rosie and defendants daughter told police that defendant had previously threatened to kill Rosie. Rosie had obtained a temporary restraining order (TRO) against defendant.
After being read his Miranda rights, defendant confessed to the murder and attempted murder, saying "I did it. Her and someone else who was there." He described parking on a side street near Rosies house, waiting for Rosie and Camacho to come home, and loading his rifle and revolver. He said he saw Camacho put his hand between Rosies legs. He "couldnt stand it" and fired both guns. He claimed he did not aim at Rosie, but shot her as she "cut across" his line of fire.
The People introduced evidence of prior uncharged conduct, consisting of defendants prior assaults on Rosie and threats to kill her. A police witness testified about statements Rosie made in connection with a 1991 incident during which defendant beat her. More significantly, the trial court admitted Rosies 1999 declaration in support of her application for the TRO. This evidence will be discussed in the context of the Evidence Code section 1370 issue.
The jury convicted defendant of the murder of Rosie and the premeditated attempted murder of Camacho, and found he personally used a firearm and inflicted great bodily injury on Camacho. The trial court sentenced defendant to life.
The precise structure of defendants life sentence is not relevant on appeal.
II. DISCUSSION
Defendant claims Wheeler error, a denial of his right to an adequate record on appeal, and error in the admission of Rosies declaration in support of the TRO against defendant. We discuss each contention in turn.
A. Wheeler Error
Defendant contends the prosecutor violated Wheeler by using a peremptory challenge to remove an African-American prospective juror, Kimberly B., from the jury panel. We disagree because the record shows that the prosecutor exercised his peremptory challenge for legitimate, race-neutral reasons. The trial court accepted the prosecutors explanations of the challenge and denied the motion. Given the great deference we must extend to the trial court, we uphold the denial of the motion and conclude there is no merit to defendants contention for the following reasons.
In Wheeler, our Supreme Court held that the California Constitution prohibited the use of peremptory challenges to exclude jurors on the basis of group bias, i.e., solely because of their membership in a cognizable class such as race or religion. (Wheeler, supra, 22 Cal.3d at pp. 276-278, 287.)
Subsequently, the United States Supreme Court ruled that such use of peremptory challenges violated the federal Constitution. (See Batson v. Kentucky (1986) 476 U.S. 79.)
But a peremptory challenge may constitutionally be exercised on the basis of specific bias, i.e., "a bias relating to the particular case on trial or the parties or witnesses thereto." (Wheeler, supra, 22 Cal.3d at p. 276.) "[T]he law recognizes that a peremptory challenge may be predicated on a broad spectrum of evidence suggestive of juror partiality. The evidence may range from the obviously serious to the apparently trivial, from the virtually certain to the highly speculative." (Id. at p. 275.)
It is important to remember the legitimate bases for peremptory challenges, that include various factors which suggest the possibility of pro-defense or pro-prosecution bias. "For example, a prosecutor may fear bias on the part of one juror because he has a record of prior arrests or has complained of police harassment, and on the part of another simply because his clothes or hair length suggest an unconventional lifestyle. In turn, a defendant may suspect prejudice on the part of one juror because he has been the victim of crime or has relatives in law enforcement, and on the part of another merely because his answers on voir dire evince an excessive respect for authority." (Wheeler, supra, 22 Cal.3d at p. 275.)
As Wheeler elaborated, such factors may be less focused on the background or basic impression of a potential juror, but more commonly involve a "gut feeling" or the seat-of-the-pants subjectivity of prosecutors and defense attorneys alike. "Indeed, even less tangible evidence of potential bias may bring forth a peremptory challenge: either party may feel a mistrust of a jurors objectivity on no more than the `sudden impressions and unaccountable prejudices we are apt to conceive upon the bare looks and gestures of another (4 Blackstone, Commentaries * 353)—upon entering the box the juror may have smiled at the defendant, for instance, or glared at him." (Wheeler, supra, 22 Cal.3d at p. 275.) In more modern terms, a peremptory challenge may be based on a "hunch" or even an arbitrary reason, "so long as the reasons are not based on impermissible group bias. [Citation.]" (People v. Turner (1994) 8 Cal.4th 137, 165 (Turner).)
For a number of reasons, including respect for counsel as officers of the court, it is presumed that a prosecutors peremptory challenge is exercised "on a constitutionally permissible ground." (Wheeler, supra, 22 Cal.3d at p. 278.) That presumption is rebutted if the defendant shows a prima facie case that peremptory challenges were exercised solely on the basis of group bias. (Id. at pp. 278-281; see People v. Alvarez (1996) 14 Cal.4th 155, 193.)
If the defendant makes such a showing, the burden shifts to the prosecutor to show that the peremptory challenges were made on the basis of specific bias, i.e., legitimate race-neutral factors reasonably relevant to the particular case being tried or its parties. (Wheeler, supra, 22 Cal.3d at pp. 281-282; see People v. Johnson (1989) 47 Cal.3d 1194, 1216 (Johnson).)
The voir dire of the prospective juror Kimberly B. began with the trial court questioning her about information she had included in her juror questionnaire. Her cousin had been arrested when she "was little," but she had no indication her cousin was unfairly treated and the arrest did not affect her ability to be fair and impartial. She had been the victim of juvenile vandalism of her car, but did not make a police report because the juveniles "were long gone" by the time police arrived. Nothing about the vandalism affected her ability to be fair and impartial. The court asked her about her brother having been killed by his girlfriend. Kimberly B. said that "was about 20 years" ago, and that too did not affect her fairness and impartiality as a juror.
The court asked Kimberly B. about her general feelings about the criminal justice system. She had stated in her questionnaire that the system had too many loopholes and was sometimes unfair. When asked to elaborate, she said: "Certain crimes, like spousal abuse or rape or something, I just feel usually the perpetrator doesnt get what should be coming to them. Sometimes they just seem to get off too easy or not serve all the time for certain crimes. Just in general. Not speaking of anything in particular." These views would not influence her ability to sit in the case as a juror.
Finally, the court asked Kimberly B. about domestic violence. Her sister had been a victim of domestic violence, and her brother had been accused of domestic violence, about 15 years previously. Kimberly B. had not witnessed any domestic violence and neither incident would affect her ability to be a fair and impartial juror.
The prosecutor asked only a few questions of Kimberly B. He asked about the domestic violence incidents and confirmed that Kimberly B. felt there were too many loopholes in the law. He asked if she could judge the case on the evidence, and convict if the People showed proof beyond a reasonable doubt—even if the only proof was testimony of a police officer. Kimberly B. said she could.
Likewise, the defense asked only a few questions. Kimberly B. told defense counsel she could be fair and impartial even though the case involved domestic violence allegations and Kimberly B. felt that "domestic violence perpetrators dont get whats coming to them." Counsel asked, "I think you noted the system is sometimes unfair, and Im wondering to whom you think its unfair?" Kimberly B. responded, "I guess victims."
After the prosecutor exercised a peremptory challenge against Kimberly B., defendant made a Wheeler motion. Defendant argued that the prosecutor had improperly used his peremptory challenge to exclude Kimberly B. on the basis of race. In response to the motion, the prosecutor stated for the record that "there is an African American woman currently in the jury box . . . [and] [t]here are several African American jurors out in the panel." The prosecutor also stated, "The Court itself read the questionnaires . . . ."
Defendant also argued the prosecutor had improperly used peremptory challenges against two other prospective jurors, an African-American male, Charles G., and a Hispanic male, Christopher B. Defendant withdrew Christopher B. from the scope of his motion when reminded the prospective juror was not Hispanic, but Filipino. The trial court opined the prosecutor had clear reasons for challenging Charles G. due to his demeanor and his difficulty in answering questions. Defendant does not contest the challenge to Charles G. Only the challenge to Kimberly B. is at issue on appeal.
The trial court found that defendant had established a prima facie case, although the court characterized the showing as "very marginal." Thus, the burden passed to the prosecutor to explain the reasons for the challenge.
The prosecutor gave these reasons for the peremptory challenge: "One of the things that initially concerned me when reading the questionnaire regarding [Kimberly B.] was her interest in psychology. That was a note that I had written down already. She had cousins who had been arrested before, and she had a brother accused of domestic violence before. [¶] "She had a brother killed by a girlfriend, and when I was asking her about that and when the Court was asking [her] about that, I didnt think she showed a whole lot of concern or interest in that with me. Also I have notes written down that when she answered the question about what her problems were with the criminal justice system, she said `I guess victims, which made me think she was coming up with an answer rather than something that was directly there out in front of her. [& para;] "She was also, I also noticed her shaking her head in an affirmative fashion when [defense counsel] was talking about reasonable doubt to another juror, which that sort of outward manifestation of thoughts and feelings regarding that issue concerned me. She also took, I believe in my notes I have [that] she took a criminal law course; that concerned me as well. [¶] "That is a thumbnail sketch of my concerns with [Kimberly B.], all of which are obviously race neutral." (Italics added.)
Defense counsel did not respond to this argument. Indeed, he made no further substantive argument on the motion. He did not challenge the sincerity of the prosecutors reasons. He did not dispute the prosecutors observation that Kimberly B. nodded her head when defense counsel spoke about reasonable doubt. He did not dispute the prosecutors characterization that "I guess victims" was "coming up with an answer." He did not challenge the accuracy of any factual information the prosecutor took from the juror questionnaire.
The court found that "the explanation that [the prosecutor] provided the Court was sincere and genuine . . . I think the reasons given by [the prosecutor] that [Kimberly B.] had an interest in psychology, that her cousin was arrested, her brother was arrested for domestic violence, that the answer that she gave about the criminal justice system did seem to be a little strange. And also, I didnt notice her shaking her head about readable [sic] doubt, but I dont have any reason to think she wasnt sincere. Also her brother was killed by a girlfriend." The court denied the Wheeler motion.
We review the denial of defendants Wheeler motion under well-established rules. " `[T]he party seeking to justify a suspect excusal need only offer a genuine, reasonably specific, race- or group-neutral explanation related to the particular case being tried. [Citations.] The justification need not support a challenge for cause, and even a "trivial" reason, if genuine and neutral, will suffice. [Citations. . . .]" (People v. Ervin (2000) 22 Cal.4th 48, 74-75.)
When the trial court inquires into the reasons offered for a peremptory challenge, "[t]he proper focus . . . is on the subjective genuineness of the race-neutral reasons given for the peremptory challenge, not on the objective reasonableness of those reasons. [Citation.]" (People v. Reynoso (2003) 31 Cal.4th 903, 924 (Reynoso).) In other words, is the race-neutral reason sincere and genuine, or is it a pretext for denying the defendant equal protection of the law? (Id. at pp. 924-925.)
We must give "great deference to the trial court in distinguishing bona fide reasons from sham excuses. [Citations.]" (Turner, supra, 8 Cal.4th at p. 165; see Reynoso, supra, 31 Cal.4th at p. 923.) The Wheeler court recognized that appellate courts can "rely on the good judgment of the trial courts" in separating the constitutional wheat from the discriminatory chaff of peremptory challenges. (Wheeler, supra, 22 Cal.3d at p. 282; see Johnson, supra, 47 Cal.3d at p. 1216.)
The trial courts necessarily make credibility determinations based in no small part on those subjective and intangible factors, such as body language and the manner of answering questions, which are legitimate components of the peremptory challenge calculus which do not run afoul of the Wheeler rule. (See People v. Montiel (1993) 5 Cal.4th 877, 909; Johnson, supra, 47 Cal.3d at pp. 1218-1222.) Such factors also include "tone, demeanor, facial expression, [and] emphasis." (People v. Dunn (1995) 40 Cal.App.4th 1039, 1050.) The trial judge sees the person and hears his or her voice while we only have the benefit of the transcript.
Such credibility determinations are solely the province of the trial court. Ultimately, we must affirm if the record suggests grounds on which the prosecutor might reasonably have peremptorily challenged the jurors in question. (Turner, supra, 8 Cal.4th at p. 165; People v. Howard (1992) 1 Cal.4th 1132, 1155 (Howard).)
Here there is nothing to undermine the trial courts implicit determination that the proffered race-neutral reasons were sincere and genuine. Defendant parses through the prosecutors various reasons for the peremptory challenge, and insists they are individually invalid. We disagree.
The prosecutor was entitled to be concerned about Kimberly B.s interest in psychology and her taking a course in criminal law. Occupation and education can be relevant to a prosecutors sincere determination to exercise a peremptory challenge. In People v. Barber (1988) 200 Cal.App.3d 378, 394, the court noted that peremptory challenges "are often exercised against teachers by prosecutors on the belief that they are deemed to be rather liberal." And in Reynoso the court found the prosecutor could sincerely challenge a customer service representative on the belief that she lacked sufficient educational experience to sit on a jury—even if that belief was not necessarily objectively accurate. (Reynoso, supra, 31 Cal.4th at pp. 924-925.)
The prosecutor was also entitled to be concerned about Kimberly B.s demeanor. She appeared to him to show little concern about her brother having been killed by his girlfriend. She appeared to him to be making up an answer to the question about her problems with the criminal justice system. She appeared to him, by nodding her head, to be manifesting agreement with defense counsel on the subject of reasonable doubt. The trial court found these concerns to be genuine and sincere.
Defendant suggests we must ignore the head-nodding incident because the trial court did not see it. If the nodding did not occur as the prosecutor described it below—in open court—and if the nodding was either fictional or a figment of prosecutorial imagination, it was incumbent upon defense counsel to speak up and challenge the prosecutors description of Kimberly B.s behavior. He did not.
On the necessarily deferential standard of review, and on a cold appellate record, we cannot say that the trial courts findings are suspect, or that the court erred by denying defendants Wheeler motion. We find no Wheeler error.
Relying on People v. Silva (2001) 25 Cal.4th 345, 385-386, defendant argues the trial court failed to make a sincere and reasoned effort to evaluate the prosecutors reasons for the peremptory challenge. We disagree. Silva is distinguishable. That case involved a fairly stark situation of trial court inaction in the face of inherently implausible reasons for peremptory challenges, or reasons unsupported by the record. That is not the case here.
B. Adequacy of the Appellate Record
The Alameda County Clerk retained only the juror questionnaires of the 12 trial jurors and the 3 alternates. This fact came to light after we granted defendants motion to augment the record with the questionnaires of all prospective jurors who had not been excused for hardship or cause. Defendant now claims the clerks failure to retain Kimberly B.s questionnaire, as well as the questionnaires of the prospective jurors in the jury box at the time she was challenged, has denied him his due process right to an adequate appellate record and thus prevents effective review of his Wheeler issue. (See Howard, supra, 1 Cal.4th at pp. 1164-1166; see also People v. Chessman (1950) 35 Cal.2d 455, 460-463 (Chessman ).) We disagree.
We need not discuss in detail the analytical approach of Howard and Chessman. Defendant concedes that he can only prevail on this issue if he shows the missing questionnaires prevent "adequate and effective appellate review" of his Wheeler issue. (Howard, supra, 1 Cal.4th at p. 1166.) The absence of the questionnaires does not deprive defendant of such review.
Kimberly B.s Questionnaire
We have already concluded there was no Wheeler error. The absence of Kimberly B.s questionnaire does not affect or alter that conclusion. The trial court read her questionnaire. There was no dispute below as to its contents. The text of the questionnaire is not necessary to permit us to provide adequate and effective review of defendants Wheeler claim. The existing record is sufficient to permit such review, and defendant is not prejudiced by the absence of the jurors questionnaire. (See People v. Ayala (2000) 24 Cal.4th 243, 269-270 (Ayala).)
Although we do not rule on the question, the better practice for county clerks is to retain the juror questionnaire of any prospective juror who was the subject of a Wheeler motion.
The Other Prospective Jurors Questionnaires
Defendant argues the absence of these questionnaires makes it impossible for him to perform an analysis based on interjuror comparison. But defense counsel did not make an interjuror comparison below, and interjuror comparison may not be done on appeal. (Ayala, supra, 24 Cal.4th at pp. 269-270.)
Defendant argues Ayala is wrongly decided. That is not for us to determine. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
C. Admission of Rosies Declaration
Defendant contends the admission of Rosies hearsay statements in the declaration in support of her 1999 TRO application violated his rights to confrontation and cross-examination. We disagree.
Over defendants objection, the trial court admitted the text of Rosies declaration in support of the TRO she obtained against defendant. We need not quote the declaration verbatim. It suffices to say that in the declaration, Rosie states that defendant had been abusive in the past and had beaten her; that in 1999 he had threatened to kill Rosie if she did not get back together with him; that on August 27, 1999, when he saw her with Ramon Hernandez, he threatened to kill her if he ever saw her with another man; and that defendant threatened to kill Hernandez.
Rosies declaration concluded: "I know [defendant]. Hes very jealous and controlling and he has threatened to kill me many times. My daughter remembers the physical abuse he inflicted on me and she talks about it often. Hes trying to force me to get back together with him. He has been arrested before for dealing drugs and for assaulting me and Im afraid hes going to try to hurt me again."
Rosie made the declaration September 1, 1999. She signed the declaration under penalty of perjury.
The declaration was admitted under Evidence Code section 1370, which provides that the hearsay statement of a declarant is admissible if: [¶] "(1) The statement purports to narrate, describe, or explain the infliction or threat of physical injury upon the declarant. [¶] (2) The declarant is unavailable as a witness pursuant to [Evidence Code] Section 240. [¶] (3) The statement was made at or near the time of the infliction or threat of physical injury . . . . [¶] (4) The statement was made under circumstances that would indicate its trustworthiness. [& para;] (5) The statement was made in writing, was electronically recorded, or made to a physician, nurse, paramedic, or to a law enforcement official." (§ 1370, subd. (a).)
Henceforth referred to or cited as "section 1370" or "§ 1370."
Subdivision (b) of section 1370 provides that "circumstances relevant to the issue of trustworthiness include, but are not limited to, the following: [¶] (1) Whether the statement was made in contemplation of pending or anticipated litigation in which the declarant was interested. [¶] (2) Whether the declarant has a bias or motive for fabricating the statement, and the extent of any bias or motive. [¶] (3) Whether the statement is corroborated by evidence other than statements that are admissible only pursuant to this section."
Defendant contends section 1370 is unconstitutional because it permits the introduction of hearsay statements in violation of the Sixth Amendment rights to confrontation and cross-examination. We disagree.
Hearsay may be admitted without violating the Sixth Amendment if the hearsay satisfies one of two conditions: (1) the hearsay falls under a firmly rooted hearsay exception, or (2) the hearsay contains particularized guarantees of trustworthiness "such that adversarial testing would be expected to add little, if anything, to the statements reliability." [Citation.] (Lilly v. Virginia (1999) 527 U.S. 116, 125; see Ohio v. Roberts (1980) 448 U.S. 56, 66.)
At least two California cases have upheld the constitutionality of section 1370 under condition (2), because the statute requires that the hearsay statements "contain[] particularized guarantees of trustworthiness and adequate indicia of reliability." (People v. Hernandez (1999) 71 Cal.App.4th 417, 424 (Hernandez ); People v. Kons (2003) 108 Cal.App.4th 514, 522-523 (Kons).) We agree with these decisions. Section 1370 requires that the statement regard the infliction or threat of physical injury, be placed in writing or told to a responsible person likely to encounter a victim of domestic violence, and be made at or near the time of the infliction or threat and under circumstances indicating its trustworthiness. For the reasons set forth in Kons, supra, at pp. 522-523, we believe section 1370 requires sufficient particularized guarantees of trustworthiness and adequate indicia of reliability to allow admission of hearsay without violating the Sixth Amendment rights of confrontation and cross-examination.
Hernandez and Kons disagree as to condition (1), with Hernandez concluding section 1370 is similar to the firmly rooted exception of the spontaneous declaration (Hernandez, supra, 71 Cal.App.4th at p. 423), and Kons disagreeing with that conclusion. (Kons, supra, 108 Cal.App.4th at p. 523.) The disagreement does not concern us here.
The evidence was properly admitted in this case. Rosie was unavailable under Evidence Code section 240 because she was deceased. Her statements were formally made, in writing and under penalty of perjury, in the context of obtaining a TRO to protect herself. Her statements concerning the August 27, 1999 incident involving Ramon Hernandez were made only a few days afterwards, on September 1. Defendant could have, but did not, contest the basis for the restraining order after it was issued. Moreover, Hernandez testified about the August 27 incident and was subject to cross-examination. The trial court did not err by admitting the declaration.
In any event, any error would be harmless. Camacho survived the attempted murder and testified against defendant. Moreover, defendant confessed to the crimes. No prejudicial error emerges from this record.
Defendants argument under this issue focuses almost entirely on the 1999 declaration, not the police testimony of the 1991 hearsay. On this record, the admission of the earlier hearsay was not prejudicial error requiring reversal.
III. DISPOSITION
The judgment is affirmed.
We concur: Stein, J., Swager, J.