Opinion
NOT TO BE PUBLISHED
Appeal from the Superior Court of Riverside County, No. RIF138074, Edward D. Webster, Judge.
Allison H. Ting, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Steve Oetting and Theodore M. Cropley, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RAMIREZ, P.J.
A jury convicted defendant, John Vega, of possessing cocaine while in state prison (Pen. Code, § 4573.6) and defendant admitted that he had suffered a prior “strike” conviction (§§ 667, subds. (c) & (e), 1170.12, subd. (c)(1)). The trial court sentenced defendant to two years on the possession charge, doubled for the prior strike, for a total of four years in state prison. Defendant challenges the conviction on the ground that the trial court improperly denied his Wheeler/Batson motion for mistrial based on exclusion of both African-American jurors from the jury panel. As discussed below, we conclude that the trial court did not err in denying defendant’s Wheeler/Batson motion, and so affirm the judgment.
All further statutory references are to the Penal Code unless otherwise indicated.
People v. Wheeler (1978) 22 Cal.3d 258; Batson v. Kentucky (1986) 476 U.S. 79.
Statement of Facts and Procedure
In May 2007, while defendant was an inmate at the California Rehabilitation Center in Norco, two correctional officers conducted a random search of defendant’s dorm. In defendant’s locker next to his bed, officers found a packet of cocaine hidden inside an antenna splinter.
The Riverside County District Attorney charged defendant with possession of cocaine by a state prison inmate, alleged that he had served a prior prison term (§667.5, subd. (b)), and that he had a prior strike conviction.
During the voir dire proceedings for defendant’s trial, the prosecutor used her first two peremptory challenges to excuse the only two African-Americans from the jury. Defense counsel made a Wheeler/Batson motion and the trial court conducted the following proceeding outside the jury’s presence.
“THE COURT: All right. For the record it appears to me that Mr. H[1] and Mr. H[2] are African Americans. They were the two-only two African Americans on the jury panel, and those are the first two people the People excused, so I think a prima facie case has been shown.
[THE PROSECUTOR]: Actually, I didn’t even realize Mr. H[1] was African American. I can deal with him first. What concerns me is that he works with the Salvation Army, including working with other people with drug issues. He speaks there every Wednesday at the Salvation Army. My concern is that if he works with a lot of people that have drug issues, that I think he would be more sympathetic to someone like [defendant] in his situation.
THE COURT: Okay.
[THE PROSECUTOR]: That’s why with him. [¶] Mr. H[2], he has a lot of issues. His car was towed. He was indicating to me-or he indicated that-what concerned me when I found out was that the reason why his car was towed was because of expired registration, which may indicate that he may not necessarily follow the law, and that he wasn’t current in that sort of thing. He also indicated that he had previously gotten a ticket before for driving over the speed limit, but he felt that he wasn’t. So he may have some issues with law enforcement. [¶] Also, the issues that he had with his two stepsons in the past both having drug issues and this being a drug possession case caused me concern.
THE COURT: Did you want to be heard, [defense counsel]?
[DEFENSE COUNSEL]: No. I’ll submit.
THE COURT: It seems to me that those are valid nondiscriminatory reasons that are supported by the evidence and so I do find that there has been no violation of either Wheeler or Batson, and that there were non-suspect reasons for excusing both parties. So we’ll just continue.”
Discussion
Defendant argues the trial court erred when it denied his Wheeler/Batson motion. This is because, although the prosecutor’s explanations for dismissing the two African-American jurors were race-neutral on their faces, a comparative analysis of other similarly-situated jurors who could have been excused on the same grounds shows the explanations to be pretextual.
“Both the state and federal Constitutions prohibit the use of peremptory challenges to remove prospective jurors based solely on group bias. [Citations.]” (People v. Watson (2008) 43 Cal.4th 652, 670 (Watson).)
“There is a rebuttable presumption that a peremptory challenge is being exercised properly, and the burden is on the opposing party to demonstrate impermissible discrimination. [Citations.] To do so, a defendant must first ‘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 strike[.] [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... discrimination.” [Citation.]’ [ Citation.]” (People v. Bonilla (2007) 41 Cal.4th 313, 341, quoting Johnson v. California (2005) 545 U.S. 162, 168.)
Here, the parties and this Court agree that defendant made out a prima facie case of discrimination because the People used its first two peremptory challenges to remove the only two African-American jurors from the panel. There is also no real dispute that the People offered race-neutral explanation for using peremptory challenges against these two jurors.
If the trial court concludes that the defendant has made a prima facie case, and if the prosecutor offers a race-neutral justification, “‘the trial court “must make ‘a sincere and reasoned attempt to evaluate the prosecutor’s explanation in light of the circumstances of the case as then known, his knowledge of trial techniques, and his observations of the manner in which the prosecutor has examined members of the venire and has exercised challenges for cause or peremptorily....’ [Citation.]”’ [ Citation.]” (Watson, supra, 43 Cal.4th at p. 670.) “‘[T]he critical question... is the persuasiveness of the prosecutor’s justification for his peremptory strike.’ [Citation.] The credibility of a prosecutor’s stated reasons for exercising a peremptory challenge ‘can be measured by, among other factors... how reasonable, or how improbable, the explanations are; and by whether the proffered rationale has some basis in accepted trial strategy.’ [Citation.]” (People v. Lewis (2008) 43 Cal.4th 415, 469.) “‘The justification need not support a challenge for cause, and even a “trivial” reason, if genuine and neutral, will suffice.’ [Citation.]” (People v. Lenix (2008) 44 Cal.4th 602, 613 (Lenix).) “Review of a trial court's denial of a Wheeler/Batson motion is deferential, examining only whether substantial evidence supports its conclusions.” (Ibid.)
Further, it is proper to engage in comparative juror analysis on appeal. “[C]omparative juror analysis is but one form of circumstantial evidence that is relevant, but not necessarily dispositive, on the issue of intentional discrimination.” (Lenix, supra, 44 Cal.4th at p. 622.) We must consider such evidence if the defendant relied on it and the record is sufficient to permit review of the comparison. However, our review is circumscribed; we need not consider responses by stricken panelists or seated jurors other than those identified by defendant. (Id. at p. 624.)
Here, the People excused Mr. H[1] because of his work with the Salvation Army. The prosecutor stated her concern that “if he works with a lot of people that have drug issues, that I think he would be more sympathetic to someone like [defendant] in this situation.” On appeal, defendant argues that, at the time the People gave this explanation, there remained on the jury panel a juror knows as “TJ10.” This woman had told the court her ex-husband was a methamphetamine addict. They had been married for 10 years and were separated for the past 3 and one-half years. He had been to prison twice. His drug use had affected TJ10, and she had had to call the police for protection in the past. He was currently clean and sober, and was allowed monthly visits with their children as long as he remained clean and sober. At present, TJ10 did not feel threatened by the fact that he was out of custody and not on drugs. Defendant argues that Mr. H[1] had in common with TJ10 that both had ongoing relationships with recovering drug addicts and both had reason to root for those person’s continued recovery, yet only Mr. H[1] was dismissed-because of his race. Both parties agree that a prosecutor’s belief that a potential juror would be unduly sympathetic to a defendant is a legitimate race-neutral reason for a peremptory challenge. (People v. Dunn (1995) 40 Cal.App.4th 1039, 1054.) What defendant skips over is that TJ10 may be considerably less supportive of recovering drug addicts than Mr. H[1] because: 1) she had had to call the police against her husband for her own protection; and 2) one of the reasons she did not feel threatened by her ex-husband is that “He doesn’t know where I am, so that helps.” This key difference between Mr. H[1] and TJ10-that she felt physically threatened enough by her drug-addict husband to call the police, and no longer felt threatened by him in part because he did not know where to find her, whereas he worked to help recovering drug addicts in a supportive setting-is enough to support the trial court’s conclusion that the People’s reasons for excusing Mr. H[1] were race neutral.
Regarding Mr. H[2], the People explained to the trial court that they excused him because his car had just been towed from juror parking because its registration was expired, he believed he received an unjustified speeding ticket, and his two stepsons were recovering cocaine addicts. In this appeal, defendant argues that the People did not excuse a non-African-American juror who had also received what he or she believed was an unwarranted speeding ticket. As TJ07 explained it, “Ten years ago going to Palm Springs. Only black vehicle on the freeway, lifted. Highway patrolman says I’ve been following you on the frontage road for the last two exits. I’m all, everybody else is passing me; how am I speeding?” As defendant points out, a negative experience with law enforcement is an acceptable, race-neutral explanation to strike a juror. (Mitleider v. Hall (9th Cir. 2004) 391 F.3d 1039, 1048.)
Mr. H[2] stated on voir dire that “Yeah, I was on the freeway. And I think he clocked me at 87, and I don’t think I was going that fast. [¶]... [¶]... I was speeding, but I wasn’t going 87.”
While it is true that the People excused Mr. H[2] while not challenging TJ07, who was not African-American but had also received what he believed as an unwarranted speeding ticket, the People offered two additional reasons for excusing Mr. H.[2] that did not apply to TJ07. First, Mr. H[2]’s car was towed from the jury parking lot for expired registration while voir dire was ongoing. Although defendant depicts this as an “offense [that is] extremely minor and hardly indicates a disregard for the law” we agree with the People that Mr. H[2]’s failure to fulfill a basic legal obligation asked of all drivers is some indication of his respect for the law, and was a valid, race-neutral reason for excusing him. Second, Mr. H[2] stated that he has two grown stepsons who were previously cocaine addicts. One went to prison, is out on parole and has been sober for five years. The other has been clean for the last three years and Mr. H[2] answered “yes” when the court asked if they were both doing well now. The People could have reasonably believed that Mr. H.[2]’s relationship with his recovering stepsons would make him sympathetic toward drug users.
In addition, TJ07 may have made a somewhat more appealing juror in the People’s eyes, despite believing he had received an unjustified speeding ticket, because he had two friends in law enforcement. One friend retired from the Army and now works for the FBI, while another works in the County Jail. However, this is partially balanced by Mr. H[2]’s statement that his “best friend’s wife [is] FBI.”
Overall then, Mr.H[2]’s current lapse in vehicle registration and his long-term family relationship with two recovering drug users, one of whom had served time in prison, differentiate him sufficiently from JT07 that substantial evidence supports the trial court’s denial of defendant’s Wheeler/Batson motion as to Mr. H[2].
Disposition
The judgment is affirmed.
We concur: RICHLI J., KING J.