Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of Riverside County No. SWF14467. Albert J. Wojcik, Judge.
Martin Kassman, 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, Senior Assistant Attorney General, Lilia E. Garcia, Supervising Deputy Attorney General, Janelle Marie Boustany and Lynne G. McGinnis, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Gaut J.
1. Introduction
A jury convicted defendant of one count of unlawful possession of a firearm and one count of unlawful possession of ammunition. (Pen. Code, §§ 12021, subd. (a), and 12316.) The court declared a mistrial on counts 3 and 4 for child endangerment. (§ 273a, subd. (a).) The court found true the allegations that defendant had a 1992 prison prior conviction and two strikes for attempted murder and kidnapping. (§§ 667.5, subd. (b); 667, subds. (c) and (e)(2)(a); and 1170.12, subd. (c)(2)(a).) The court sentenced defendant to a prison term of 26 years to life.
All statutory references are to the Penal Code unless stated otherwise.
On appeal, defendant charges Wheeler error. (Code Civ. Proc., § 231.5.) We reject his contention and affirm the judgment.
People v. Wheeler (1978) 22 Cal.3d 258, 276-277; Batson v. Kentucky (1986) 476 U.S. 79, 84-89.
2. Facts and Voir Dire
The parties agree on the facts as presented at trial. The Riverside County Sheriff’s Department conducted a parole compliance check at defendant’s Perris apartment. One deputy observed defendant step on the balcony and throw a handgun into another apartment’s backyard. Inside defendant’s apartment, the deputies found ammunition inside the pocket of defendant’s Pendleton jacket.
Juror No. 9 was African-American, a Perris resident, and a retired sanitation worker for the City of Los Angeles. He previously was a juror on a case involving kidnapping and spousal abuse in which there was a verdict. The court asked him if that case would have a negative impact on his current service. He said “No, not really.” The court commented that he had hesitated and asked whether there was a reason he could not serve. He said, “Oh, no.” The defense lawyer asked him again about his hesitation and he responded, “Most of the jurors on the case I was on was pushing me to go along with them.” He asserted he would give his honest opinion and be fair to both sides.
After the defense exercised a peremptory challenge against another juror, the People exercised a challenge against Juror No. 9. Defense counsel then brought a Wheeler motion, arguing that Juror No. 9 was the only African-American juror in the entire jury panel. The court made a finding that defendant had established a prima facie showing that the prosecutorial challenge was based on group bias.
The prosecutor argued there was no showing of a systematic exclusion based on race. She explained further that her peremptory challenge of Juror No. 9 was based on his hesitation and slight equivocation in answering the questions about being fair and impartial in the present case. She characterized his statement about the previous trial as being, “‘The other jurors made me cave in.’” She then commented about Juror No. 9, “it is clear that he is not able to follow the law, because in his own words, he caved in and yielded to peer pressure in his verdict in that last case that he served on a jury. Thus [he] demonstrated that he is unduly susceptible to peer pressure.” She elaborated at length on his perceived inability to follow the law. She claimed her practice was to challenge individuals who might cause a hung jury.
Defense counsel disputed the statement that the “other jurors made him cave in” and that he was “the lone hold-out in a jury trial.” Instead, Juror No. 9 described being “pushed” but not “bullied.” He maintained he could be fair and impartial and would not be influenced by his previous experience. He did not demonstrate “ill will or hostility” and “[h]e appeared to be an eager and attentive juror.” Defense counsel reasoned that, because the prosecutor did not ask Juror No. 9 any individual questions, “she wasn’t interested in him being a prospective juror.” Defense counsel blamed the juror’s slight hesitation on a speech impediment.
The court first ruled the defense counsel had made a prima facie showing of group bias. It then made a detailed analysis of the evidence and the reasonable inferences and ruled there was a reasonable, race-neutral basis for the prosecution’s challenge and denied the defense’s Wheeler motion.
3. Discussion
The use of peremptory challenges to exclude jurors based on the basis of group bias, that is, because they are members of “an identifiable group distinguished on racial, religious, ethnic, or similar grounds,” violates the defendant’s state constitutional right to trial by a representative jury. (People v. Fuentes (1991) 54 Cal.3d 707, 713; People v. Wheeler, supra, 22 Cal.3d at p. 276.) The same practice violates the equal protection clause of the federal Constitution. (Batson v. Kentucky, supra, 476 U.S. at p. 89.)
Under Wheeler and Batson, a party who claims impermissible use of a peremptory challenge has the burden of establishing a prima facie case of purposeful discrimination. (People v. Williams (1997) 16 Cal.4th 635, 663-664.) To establish a prima facie case, the moving party should: first, make as complete a record as possible; second, establish that the persons excluded are members of a cognizable group; third, “‘“from all the circumstances of the case he must show a strong likelihood [or reasonable inference] that such persons are being challenged because of their group association . . . .”’” (People v. Box (2000) 23 Cal.4th 1153, 1188; see People v. Kelly (2007) 42 Cal.4th 763, 779, citing People v. Bonilla (2007) 41 Cal.4th 313, 341-342.)
“[O]nce the opponent of a peremptory challenge has made out a prima facie case of racial discrimination (step one), the burden of production shifts to the proponent of the strike to come forward with a race-neutral explanation (step two). If a race-neutral explanation is tendered, the trial court must then decide (step three) whether the opponent of the strike has proved purposeful racial discrimination.” (Purkett v. Elem (1995) 514 U.S. 765, 767.) In step three, 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, . . .”’” (People v. Reynoso (2003) 31 Cal.4th 903, 919.)
Conducting a deferential review, we address step three: “Once a trial court has made a sincere and reasoned effort to evaluate each of the stated reasons for a challenge to a particular juror, we accord great deference to its conclusion. [Citations.]” (People v. Gutierrez (2002) 28 Cal.4th 1083, 1126; People v. Kelly, supra, 42 Cal.4th 763.) On this record we conclude the Wheeler motion was properly denied.
The prosecutor’s stated reasons for her challenge of Juror No. 9, as evaluated by the trial court, were inherently plausible and supported by the record. (People v. Silva (2001) 25 Cal.4th 345, 386.) Defendant accuses the prosecutor of misrepresenting the voir dire examination but he exaggerates the so-called inaccuracies. Juror No. 9 said: “Most of the jurors on the case I was on was pushing me to go along with them.” The prosecutor interpreted this to mean, “‘The other jurors made me cave in’”—signifying that Juror No. 9 may have made his decision based on pressure from the other jurors and not on the law. The prosecutor’s interpretation may have been somewhat strained but it was not implausible and, as the court noted, Juror No. 9 may have been made uncomfortable by his previous jury experience. Everyone, the court and both counsel, commented on the hesitation demonstrated by Juror No. 9. The record supports the prosecutor showed she had a genuine, nondiscriminatory, race-neutral reason for challenging Juror No. 9. (People v. Burgener (2003) 29 Cal.4th 833, 864.)
4. Disposition
We affirm the judgment.
We concur: Hollenhorst Acting P. J., Miller J.