Opinion
B228246
11-16-2011
THE PEOPLE, Plaintiff and Respondent, v. ZETTY WELCH, Defendant and Appellant.
Siri Shetty, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Steven D. Matthews and John Yang, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. NA085300)
APPEAL from a judgment of the Superior Court of Los Angeles County, Jesse I. Rodriguez, Judge. Affirmed.
Siri Shetty, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Steven D. Matthews and John Yang, Deputy Attorneys General, for Plaintiff and Respondent.
Zetty Welch (appellant) was convicted by a jury of selling marijuana. (Health & Saf. Code, § 11360, subd. (a).) He admitted suffering two prior felony convictions, one of which qualified as a "strike" pursuant to Penal Code section 1170.12, subdivisions (a) through (d) and 667, subdivisions (b) through (i). He appeals, contending that the trial court erred in denying his Batson/Wheeler motion. We affirm the judgment.
Batson v. Kentucky (1986) 476 U.S. 79 (Batson); People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler).
FACTUAL AND PROCEDURAL BACKGROUND
For purposes of this appeal, the facts in this case are not in dispute. It will suffice to observe that appellant, an African-American male, was arrested after police conducted an undercover narcotics investigation in April 2010.
The case was called for trial in September 2010. During voir dire of potential members of the jury, the prosecutor exercised several peremptory challenges, two of which were against prospective African-American jurors referred to as juror number 8 and juror number 14.
Juror Number 8
Juror number 8 indicated that he was a building mechanic, was married to a beautician with no adult children, and had no prior jury experience. When the prosecutor asked prospective jurors if they would be able to return a guilty verdict if she proved her case beyond a reasonable doubt, juror number 8 responded that if she proved the facts to him, "[T]hat's the only way I'm going to agree with it." When asked to explain the things he looked for when assessing someone's credibility, the juror stated the following: the amount of talking, "[o]verexplanations," and eye contact. Juror number 8 later acknowledged that he had a negative experience with law enforcement when he was shot in 2006. He said the responding deputies treated him as if he was the shooter. When asked by the prosecutor if he felt that the way he was treated was "not so good," he responded, "Yeah, me and everybody else that was out there." He then said, "It wasn't a big deal," and claimed it would not affect his ability to be fair and impartial.
Juror Number 14
Prospective juror number 14 stated he was a truck driver, was married to a nurse with two adult children, and had no prior jury experience. One of his children had a degree in criminal justice. He had two close friends in law enforcement but had not spoken to them in approximately five years. The court asked the prospective jurors if they had close friends or relatives who had been convicted of a criminal offense dealing with controlled substances. Juror number 14 said his brother was convicted a few years ago and was waiting for a court date in another case. When asked by the court if he could be fair and impartial, the juror stated that he could.
Upon further questioning by the prosecutor, juror number 14 explained that his brother served a year in county jail the first time he was arrested and recently had been arrested and charged with four counts. Juror number 14 explained that his brother had told him that a lot of the charges were unfounded, and stated, "I know that officers are not always right. I can tell you from my past experience. You know, they lie just like anyone else." When the prosecutor asked him how the experience with his brother made him feel about the court system, he said, "I don't feel good about it." He also said that he had had "[q]uite a few" of his own negative experiences with law enforcement approximately 25 years ago.
The Challenges
Neither the prosecutor nor defense counsel exercised any challenges for cause. The prosecutor exercised peremptory challenges against juror numbers 2, 14, 9, and 8.
The prosecutor exercised her first peremptory against juror number 2, a teacher whose nephew was in state prison on a drug conviction and had a friend who pled guilty to the sale of marijuana. He did not believe that nonviolent drug offenses should be criminalized but said that he thought he could be fair and impartial.
The defense exercised a peremptory against juror number 13, who was unemployed, with an unemployed spouse and three adult children. He had no prior jury experience.
The prosecutor excused juror number 9, an unmarried supermarket clerk, who had previously served on a criminal jury and had family members who were lawyers. He said that there were a lot of laws that he did not agree with, and when asked if he could return a guilty verdict, said, "There's a whole lot of shade of gray, but probably."
Out of the presence of the jury, defense counsel made a Wheeler motion, stating that, "The two Blacks that you tossed off the jury, both of them said that they could be fair and impartial, and I think that there is utterly no basis for tossing them at all."
The court stated that it did not believe the defense had made a prima facie case based on the answers given by the two jurors, even though they said they could be fair and impartial. At this point, the prosecutor attempted to say something, and the court stated, "You don't need to answer, Ma'am." Defense counsel then continued, "Despite the fact that they said they would go with the facts and they could vote guilty?" The court responded: "Well, . . . Mr. 14 that became No. 2, his brother has had two cases, one most recent, for four counts. The juror's had several negative experiences with law enforcement, albeit 25 years back. . . . And then Juror No. 8, young man with several tattoos and earrings, being shot not by police but at the time the police thought that he was the shooter, that could have an everlasting effect on a person having been a victim of a crime in a shooting and being shot and then simultaneously being accused of being the shooter. I think that's an everlasting damage in somebody's mind. So, therefore, that's why I thought that you hadn't made a prima facie case."
DISCUSSION
Both the federal and state Constitutions prohibit any advocate's use of peremptory challenges to exclude prospective jurors based on race. (Batson, supra, 476 U.S. at p. 97, Wheeler, supra, 22 Cal.3d at pp. 276-277.)
In order to make a successful Batson/Wheeler challenge to the exercise of peremptory challenges, "[f]irst, 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.' [Citations; fn. omitted.] 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.]" (Johnson v. California (2005) 545 U.S. 162, 168; People v. Hawthorne (2009) 46 Cal.4th 67, 78.)
The first step of this inquiry requires the defendant to produce "evidence sufficient to permit the trial judge to draw an inference that discrimination has occurred." (Johnson, supra, 545 U.S. at p. 170; People v. Davis (2009) 46 Cal.4th 539, 582.)
Appellant contends the court erred because it did not inquire into the prosecutor's reasons for challenging the jurors and failed to "advance to the second and third steps of the inquiry." Appellant also argues that the negative experiences of juror numbers 8 and 14 were not the true reason for excusing them because the prosecutor did not exercise challenges against juror numbers 15 and 16, both of whom had family members with contacts to the criminal justice system.
On appeal, we review the record independently to determine whether the record supports an inference that the prosecutor excused the jurors on the basis of race. (People v. Taylor (2010) 48 Cal.4th 574, 614; People v. Bonilla (2007) 41 Cal.4th 313, 342.) In determining whether there was an inference of discriminatory purpose, we look to the totality of the relevant facts. (People v. Clark (2011) 52 Cal.4th 856, 905; People v. Carasi (2008) 44 Cal.4th 1263, 1292.)
Appellant argues the fact that he and the two excused jurors are African-American is alone sufficient to establish the inference of the prosecutor's discriminatory purpose. Although we agree such evidence supports an inference of discrimination, there are other circumstances in the record that dispel that inference. The prosecutor exercised two of her five peremptory challenges against African-Americans. The record does not disclose whether other African-Americans were called to the jury box and ultimately heard the case. Under these circumstances, it is difficult to discern a pattern from which we can infer the prosecutor was exercising her challenges in a discriminatory manner. (See People v. Taylor, supra, 48 Cal.4th at pp. 614-615.)
In addition, based on the two jurors' responses to questioning, there were clear race-neutral reasons for excusing them. Juror number 14 felt that his brother was wrongfully accused of crimes and the juror expressed distrust of police officers. He also had personal prior negative experiences with law enforcement. Juror number 8 believed that he had been treated poorly by police as a victim of a shooting, suggesting that everyone at the scene of the incident drew the same conclusion. These expressions of dissatisfaction with the criminal justice system or law enforcement disclose ample race-neutral reasons for their excusal. (See People v. Clark, supra, 52 Cal.4th at pp. 907-908.)
Appellant contends that having family members with negative law enforcement contacts was a pretext for excusing the two jurors because juror numbers 15 and 16 had similar experiences and were not excused. We find nothing in the responses of juror numbers 15 and 16 that demonstrated they had negative feelings towards the criminal justice system or law enforcement. Juror number 15 had a brother who pled guilty to narcotics possession, but said that he really did not know any of the details of the incident and felt his brother had been treated fairly. Juror number 16 noted that her aunt was convicted "decades ago" of personal use of a substance, but the juror did not know what the substance was. The juror said her aunt never mentioned being mistreated. Significantly, neither juror expressed the type of negative sentiment evident in the excused jurors' responses.
Based on our independent review of the totality of the relevant facts, we cannot find a basis for inferring that the prosecutor challenged the two prospective jurors in question because of their race. Thus, appellant did not satisfy the first step of the Batson/Wheeler inquiry by establishing a prima facie case giving rise to an inference of discriminatory purpose. (People v. Taylor, supra, 48 Cal.4th at pp. 615-616.) Since appellant did not meet his burden of proving a prima facie case, the court was not required to ask the prosecutor the reasons for the challenges. (Id. at p. 616.)
The trial court did not err in denying appellant's Batson/Wheeler motion.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
SUZUKAWA, J. We concur:
WILLHITE, Acting P. J.
MANELLA, J.