Opinion
A118307
3-3-2009
THE PEOPLE, Plaintiff and Respondent, v. GREGORY JAMES WEST, JR., Defendant and Appellant.
Not to be Published in Official Reports
The defendant Gregory James West, Jr. seeks reversal on the ground that the prosecutor used a peremptory challenge to remove a prospective juror because of his race. We affirm.
BACKGROUND
In March 2006, Gregory James West, Jr. was charged with second degree murder (count 1; Pen. Code, § 187 ) and discharging a firearm at an inhabited dwelling (count 2; § 246). As to each count, it was alleged that he personally and intentionally discharged a firearm, causing great bodily injury (§ 12022.53, subd. (d)). A jury returned a guilty verdict on both counts and found the enhancement allegations true. West was sentenced to 40 years to life in prison.
All statutory references are to the Penal Code unless otherwise indicated.
The sole argument West raises on appeal is that the prosecutor unconstitutionally exercised a peremptory challenge against a jury panelist on the basis of race. (See Batson v. Kentucky (1986) 476 U.S. 79 (Batson); People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler).) Therefore, we limit our further discussion of the record to the jury selection process.
Jury selection began the morning of October 5, 2006. That afternoon, T.M. was called into the jury box. Both T.M. and West are African American men. The court asked T.M., "[H]ave you or [has] anyone close to you ever been a victim of a crime?" and T.M. responded in the negative. In the course of answering a list of standard questions posed to all panelists, T.M. said, "I work for Muni. I have been there for 21 years." In his follow-up questions, the prosecutor asked T.M. only about the occupations of his children. The court did not excuse T.M. for cause.
Thereafter, the prosecutor and defense counsel had an opportunity to exercise peremptory challenges. (The prosecutor and defense had each already exercised three peremptory challenges.) The prosecutor and defense each exercised their fourth and fifth peremptory challenges and the prosecutor then accepted the prospective jury (which still included T.M.) as impaneled. After the defense exercised its sixth peremptory challenge, the prosecution again accepted the panel with T.M., and after the defense exercised its seventh challenge, the prosecution accepted the panel with T.M. for the third time. The defense exercised an eighth peremptory challenge (not T.M.) and court adjourned for the day.
The morning of October 6, 2006, a new group of panelists was questioned and the prosecution and defense again had the opportunity to exercise peremptory challenges. The prosecutor and defense each exercised two peremptory challenges and T.M. remained on the prospective jury. The prosecutor then used his eighth challenge to remove T.M. from the jury. At the time of this challenge, T.M. was one of two African Americans on the prospective jury. None of the panelists previously challenged by either the prosecution or the defense was African American. There was one African American, a woman, remaining in the venire.
The defense immediately brought a Batson/Wheeler motion, arguing the challenge was motivated by T.M.s race. Defense counsel argued: "There is absolutely no race neutral reason[] to justify this challenge. [T.M.] is heavily endowed with friends that are police officers, one judge, his daughter is studying law [in] school in D.C. He is a Muni driver. His other kid is in college. Another kid is in the record industry. He has friends in the police department at the airport. He believes in the law and in the laws relating to gun control. He is a law abiding citizen."
The trial court found the defense had made a prima facie case of discrimination and asked the prosecutor to state his reasons for challenging T.M. The prosecutor noted that he had passed on the panel three times while it included T.M. "The People were confident that he could be a neutral person. That is why I passed three times. . . . I wont explain my strategy for picking my juries, but one of the things I do look at is how I believe I perceive the jury and how the juror is perceiving me. [¶] Yesterday I was fine with [T.M.], but today from the moment I walked into the courtroom to the moment I kicked him, every time I looked at him he was staring at me. He was not staring only at me but he was also staring at my intern. If he was not staring at me or my intern, he was sleeping a couple of times. [[¶] . . . I dont believe him to be a very receptive juror to the prosecutions case. Not based on the color of his skin or anything of that matter, but just based on the fact that I never keep jurors who I believe are not receptive to me or not open minded who continue to stare me down . . . . [¶] And then once the make-up of the jury was changed after three passes, I took a strategy as to what individuals I wanted my jury based on their-I dont like to give my strategy away, but based on . . . how I believe the evidence is going to play out and based on certain characteristics from the persons background, from the persons family situation, et cetera . . . ."
Defense counsel specifically disputed the prosecutors statement that T.M. had been sleeping. "Not once has that man . . . been asleep. Nobody has in this courtroom actually this afternoon. It has been-well, its been a very interesting afternoon. Certainly not boring. [¶] And I have been watching [T.M.]. I have been watching the other jurors. They have all been very engaged. So I simply say that that is not true that [T.M.] either was or was appearing to be . . . asleep at any time this afternoon."
On the prosecutors statement that T.M. had been staring at him, defense counsel responded: "[I]f [the prosecutor] has been eyeballing [T.M.] sufficiently to be able to say that he has been getting eyeballed by the juror, then I think its an invitation. If I start staring at any juror for any period of time, its inviting that juror to look back at me. . . . [Y]ou just get what you pay for at this point. [¶] The one reason that the juror might be looking at my colleague and his assistant is because . . . [the prosecutor] is an African American male. His assist[ant] is [an] African American female. [T.M.] is an African American. And I am sure that that subject is interesting to him as far as careers that people take and the progress that his people have made through history. So that I think is meaningless. [¶] We are all under the eyeballs of jurors when we are here in this courtroom. We are being looked at very carefully, apparently to the extent that my bow tie has been found to be amusing by at least one juror. Now, I think this work requires a little bit of a thicker skin than that."
Defense counsel argued the prosecutors stated reasons were insufficient to dispel the inference of discrimination and "[i]f now additional answers are forthcoming, I would suggest to the court that perhaps those answers should be viewed with distrust. . . . [C]ounsel [said] nothing about [T.M.]s background. Said nothing about his upbringing that caused him concern. Nothing about his opinions that caused his concern. Nothing about his family situation or about his professional involvement that caused him concern. Nothing about [T.M.] himself that caused [him] concern."
The prosecutor interjected, "Could I briefly respond? . . . . [¶] One thing that stood out about [T.M.] . . ., I look for people who when they respond to their questions, they respond with conviction, either negative or positive. [T.M.] was very-his responses were very monotone. They were like, yes, I can be fair and open mine [sic]. Yes, yes, yes. Other individuals, there was conviction when they responded to the questions which is something I look for because it takes strong conviction to make decisions in cases like this. [¶] Another thing. . . . [T.M.] has been a bus driver for 21 something years and he said he has never been a witness or victim to a crime. To me I find that hard to believe in this City and County of San Francisco being a Muni bus driver and not seeing anything." Defense counsel responded that if T.M.s alleged comment that he had not seen crime in 21 years "was of concern to [the prosecutor], he should have asked about that." He also disputed whether T.M. had spoken in a monotone.
The court took the matter under submission and ruled on the next court day. "I did take the opportunity to look over my materials over the weekend. What makes this case difficult for me is that conduct was described that occurred when I was not looking at [T.M.] who is the African American male in question. [¶] Typically when these issues arise, it is very easy for the court to make a determination one way or the other because the court is observing at all times the questions, answers, demeanor, et cetera. So that makes this case somewhat unusual." Citing case law, the court said the prosecutor did not need to justify the challenge for cause, but could state even a trivial reason for the challenge as long as it was race-neutral, including the panelists "demeanor and body language or making comments suggestive of apathetic attitude and displays hostility toward the source who exercised the challenge." "Another valid reason for an excuse is the prospective juror works in an occupation the attorney has a stereotype about . . . ." "Here [the prosecutor] stated that [T.M.] was staring at him and his intern such that [the prosecutor] was becoming uncomfortable with the jurors behavior. The juror is a Muni bus driver. [¶] [The prosecutor] also stated [ ] that it appeared that the juror was at times sleeping. Unfortunately, as I stated at the beginning of this, I did not observe [T.M.] during Fridays proceedings because I was concentrating on the jurors that are seated to my very far right for the most part. So I dont remember even looking at [T.M.] during these proceedings.
"Considering the totality of the circumstances, I find that [the prosecutors] reasons for exercising his challenge to be reasonable and having some basis in trial strategy. I do have professional experience with [the prosecutor] in two prior homicide trials, and I have observed his prior juror selection and exercise of his peremptory challenges in those cases and I have found [the prosecutor] who is himself an African American to be extremely sensitive to the issue of race, including the right to be tried by a jury drawn from the cross-section of the community and the defendants equal protection rights. [¶] [The prosecutor] passed on his peremptory challenges three times before challenging [T.M.], and [the prosecutor] said Friday afternoon as the proceeding wore on that he perceived hostility being directed toward him from [T.M.]. There had been rumblings from this panel, especially on Friday. The panel as a whole was becoming more demonstrative, more impatient with the jury selection process . . . [¶] . . . [¶] . . . I do note that [an] African American woman is a prospective juror and remains on the panel and I have seen that there is another African American woman in the audience. In sum, I believe [the prosecutor]. I have always found him to be ethical and honest and it would not be reasonable for [the prosecutor] to retain a juror that he believes is hostile." The court denied the motion.
DISCUSSION
"Both the federal and state Constitutions prohibit any advocates use of peremptory challenges to exclude prospective jurors based on race. (Batson, supra, 476 U.S. at p. 97; [citation]; Wheeler, supra, 22 Cal.3d at pp. 276-277.) Doing so violates both the equal protection clause of the United States Constitution and the right to trial by a jury drawn from a representative cross-section of the community under article I, section 16 of the California Constitution. [Citations.] . . . [¶] The Batson three-step inquiry is well established. First, the trial court must determine whether the defendant has made a prima facie showing that the prosecutor exercised a peremptory challenge based on race. Second, if the showing is made, the burden shifts to the prosecutor to demonstrate that the challenges were exercised for a race-neutral reason. Third, the court determines whether the defendant has proven purposeful discrimination. The ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike. [Citation.] The three-step procedure also applies to state constitutional claims. [Citations.]
"A prosecutor asked to explain his conduct must provide a ` "clear and reasonably specific" explanation of his "legitimate reasons" for exercising the challenges. (Batson, supra, 476 U.S. at p. 98, fn. 20.) `The justification need not support a challenge for cause, and even a "trivial" reason, if genuine and neutral, will suffice. [Citation.] A prospective juror may be excused based upon facial expressions, gestures, hunches, and even for arbitrary or idiosyncratic reasons. [Citations.] Nevertheless, although a prosecutor may rely on any number of bases to select jurors, a legitimate reason is one that does not deny equal protection. [Citation.] Certainly a challenge based on racial prejudice would not be supported by a legitimate reason.
"At the third stage of the Wheeler/Batson inquiry, `the issue comes down to whether the trial court finds the prosecutors race-neutral explanations to be credible. Credibility can be measured by, among other factors, the prosecutors demeanor; by how reasonable, or how improbable, the explanations are; and by whether the proffered rationale has some basis in accepted trial strategy. [Citation.] In assessing credibility, the court draws upon its contemporaneous observations of the voir dire. It may also rely on the courts own experiences as a lawyer and bench officer in the community, and even the common practices of the advocate and the office who employs him or her. (See Wheeler, supra, 22 Cal.3d at p. 281.)
"Review of a trial courts denial of a Wheeler/Batson motion is deferential, examining only whether substantial evidence supports its conclusions. [Citation.] `We review a trial courts determination regarding the sufficiency of a prosecutors justifications for exercising peremptory challenges "`with great restraint. " [Citation.] We presume that a prosecutor uses peremptory challenges in a constitutional manner and give great deference to the trial courts ability to distinguish bona fide reasons from sham excuses. [Citation.] So long as the trial court makes a sincere and reasoned effort to evaluate the nondiscriminatory justifications offered, its conclusions are entitled to deference on appeal. [Citation.] [Citation.]" (People v. Lenix (2008) 44 Cal.4th 602, 612-614 (Lenix) [fns. omitted].)
The trial courts finding that the prosecutors reasons for challenging T.M. were race-neutral is supported by substantial evidence. The court acknowledged that it did not observe T.M. on the day the prosecutor claimed T.M. was staring at him and his assistant and occasionally sleeping. Therefore, the court was unable to directly assess the credibility of the prosecutors characterization of T.M.s conduct. However, the court relied on other appropriate grounds to find that the prosecutors challenge of T.M. was not race-based. (See Lenix, supra, 44 Cal.4th at p. 613 [ultimate question is whether the prosecutors challenge was racially motivated].)
Because the trial court asked the prosecutor to state reasons for his challenge and ruled on the ultimate question of intentional discrimination, the first-stage issue of whether defendant established a prima facie case is moot. (See Lenix, supra, 44 Cal.4th at p. 613, fn. 8.)
First, the trial court cited its own experience presiding over two previous homicide trials that had been prosecuted by the same prosecutor and stated that, in observing the jury selection process in those cases, it "found [the prosecutor] who is himself an African American to be extremely sensitive to the issue of race, including the right to be tried by a jury drawn from the cross-section of the community and the defendants equal protection rights." Moreover, the court had "always found him to be ethical and honest." In Lenix, the Supreme Court held that a trial court may properly "rely on . . . the common practices of the advocate and the office who employs him or her." (Lenix, supra, 44 Cal.4th at p. 613.)
Second, the court cited the facts that the prosecutor had passed on his peremptory challenges three times when the prospective jury included T.M., the prosecutor had not challenged another African American panelist, and a third African American remained in the venire and might eventually be seated on the jury. In Lenix, the Supreme Court cited similar evidence and held that it undermined the defense argument that the prosecutors challenge was motivated by race. (Lenix, supra, 44 Cal.4th at p. 631, fn. 20.)
And third, the court found that the prosecutors stated reasons were "reasonable and having some basis in trial strategy." In other words, the prosecutors stated reasons were not inherently implausible as motivations for removing a panelist from a prospective jury. Again, Lenix expressly holds that the trial courts credibility finding can be based on " `how reasonable, or how improbable, the [prosecutors] explanations are; and by whether the proffered rationale has some basis in accepted trial strategy. [Citation.]" (Lenix, supra, 44 Cal.4th at p. 613.)
According to West, the trial judge engaged in speculation when she said the prosecutor challenged T.M. for "hostile" behavior, referring to the prosecutors description of T.M.s alleged staring behavior. West correctly points out that the prosecutor never used the word "hostile" in describing T.M.s behavior. However, the prosecutor explained, "I never keep jurors who I believe are not receptive to me or not open minded who continue to stare me down . . . ." (Italics added.) The trial judge reasonably inferred from this statement that the prosecutor interpreted T.M.s staring as an indication he was not receptive (stated differently, resistant or hostile) to him or his case. The issue before the court was not whether T.M. was actually hostile or nonreceptive to the prosecutors case, but whether the prosecutor honestly challenged T.M. for that reason and not because of T.M.s race. That defense counsel or anyone else might have drawn a different conclusion from T.M.s staring (assuming it occurred) does not discredit the prosecutors statement that he interpreted the staring as something akin to hostility and challenged T.M. for that reason rather than because of T.M.s race. (See Lenix, supra, 44 Cal.4th at p. 628 ["possible contrary inferences do not undermine the genuineness of the prosecutors explanation"].)
West incorrectly maintains that the trial court could not lawfully credit the prosecutors demeanor-based reasons (staring and sleeping) without having observed the alleged demeanor itself. He relies first on case law discussing the importance of the trial courts observations in the courtroom to the Batson/Wheeler third-stage ruling, which is essentially a credibility determination. (See Snyder v. Louisiana (2008) ___ U.S. ___, [128 S.Ct. 1203, 1208] (Snyder); Lenix, supra, 44 Cal.4th at p. 613.) Second, he quotes a passage from Snyder in which the United States Supreme Court holds that a state appellate court erred by deferring to a trial courts supposed finding that a demeanor-based reason for a challenge (the panelists nervousness) was credible. (Snyder,128 S.Ct. at p. 1209.) From these premises, West reasons, "Without having observed [T.M.]s behavior in the courtroom, the court was unable to make `a sincere and reasoned attempt to evaluate the prosecutors explanation. (People v. Hall (1983) 35 Cal.3d 161, 167.) Thus the prosecutors explanation that he challenged [T.M.] in part because [T.M.] was staring at the prosecutor and his assistant could not provide a race-neutral reason to support his challenge."
Wests argument is unpersuasive. Snyder does not hold that a trial court may credit a demeanor-based reason for a challenge only if the court observed the panelists demeanor itself. Nor does it hold that deference to a trial court finding that credits a demeanor-based reason for a challenge is appropriate only if the trial court observed the panelists demeanor itself. Instead, Snyder holds that deference was not appropriate in the particular circumstances of that case because it was impossible to determine whether the trial court ever actually credited the demeanor-based reason for the challenge. In Snyder, the prosecutor stated two reasons for the challenge and the trial court summarily denied the defendants motion. (Snyder, supra, 128 S.Ct. at p. 1208.) "It is possible that the judge did not have any impression one way or the other concerning [the panelists] demeanor. . . . [The] judge may not have recalled [the panelists] demeanor. Or, the trial judge may have found it unnecessary to consider [the panelists] demeanor, instead basing his ruling completely on the second proffered justification for the strike. For these reasons, we cannot presume that the trial judge credited the prosecutors assertion that [the panelists] was nervous." (Id. at p. 1209.)
In Lenix, which was decided after Snyder and is of course binding on this court (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455), the California Supreme Court expressly held the trial court may evaluate the credibility of a prosecutors reasons, not only by drawing upon its contemporaneous observations of the voir dire, but also by considering the prosecutors own demeanor, how reasonable or improbable the reasons are and whether they have some basis in trial strategy, the courts own experiences as a lawyer and bench officer, and "even the common practices of the advocate and the office who employs him or her." (Lenix, supra, 44 Cal.4th at p. 613.) Here, the trial court credited the prosecutors reasons based on its observations of the prosecutors demeanor and the prosecutors conduct of jury selection in this case, its assessment of the reasonableness of the prosecutors stated reasons, and its prior experiences with the prosecutor. These were all legitimate grounds for the courts finding and, with the exception of the reasonableness of the stated reasons, are all grounds that merit deference because they cannot fairly be reviewed on the cold appellate record.
Moreover, the trial judge made a specific credibility finding to which this court can defer. In Snyder, the court had simply stated, " `All right. Im going to allow the challenge. " (Snyder, supra, 128 S.Ct. at p. 1208.) Therefore, as explained, it could not be presumed that the trial court ever credited the prosecutors reason that the panelist acted nervous. (Id. at p. 1209.) Here, the court ruled, "I believe [the prosecutor]" and further ruled that it was not unreasonable for the prosecutor to challenge a panelist he viewed as hostile. The court thereby indicated that it had specifically credited the prosecutors statement that T.M. was staring at him in a way that could reasonably be construed as hostility. (See Lenix, supra, 44 Cal.4th at p. 614, fn. 9 [from the trial courts ultimate finding that the peremptory challenges were not racially motivated, the California Supreme Court infers that trial court credited the prosecutors stated reasons for the challenges].)
West further argues that the prosecutors bus driver rationale is not supported by substantial evidence. He correctly observes that T.M. said during voir dire he had worked for Muni for 21 years, not that he had worked as a Muni bus driver for 21 years. Also, T.M. was never asked whether he had ever been a witness to a crime. As to T.M.s occupation, we note that both defense counsel and the trial judge drew the same inference from T.M.s testimony that he had worked for Muni for 21 years. Indeed, defense counsel was the first person to expressly draw this inference. Defense counsel also implicitly agreed (erroneously) that T.M. had testified he had never been a victim of a crime when he responded to the prosecutors rationale by saying that if the testimony had concerned the prosecutor he should have questioned T.M. about it, rather than disputing that T.M. had ever testified he had never been a victim of a crime. Defense counsels error does not excuse the prosecutors error, but it tends to undermine any inference that the error manifested a racial motivation. We give some credit to defense counsels argument that the prosecutor would have questioned T.M. about this testimony if he had truly been concerned about it, but cannot conclude that this evidence alone supports an inference of discriminatory intent in dismissing the panelist. This reason for challenging T.M. was mentioned by the prosecutor only as an "afterthought," as West himself puts it in his appellate brief. The initial and primary reason offered by the prosecutor was the panelists demeanor on the day he was challenged. The trial judge devoted most of her ruling to an assessment of the demeanor-based reason and specifically credited that reason. Any weakness in the occupation-based reason is insufficient to warrant a reversal of the courts ruling.
The record on appeal demonstrates that the trial judge engaged in "a sincere and reasoned attempt to evaluate the prosecutors explanation" for the peremptory challenge. (People v. Hall, supra, 35 Cal.3d 161, 167.) The court took the matter under submission and placed a detailed explanation for her decision on the record. We reject the implication in Wests oral argument that, in the circumstances of this case, the trial judge erred by apparently failing to review a transcript of the voir dire to test the accuracy of the prosecutors and defense counsels representations as to the content of T.M.s testimony, which the judge herself had also heard. The trial judge determined the challenge was not racially motivated based in part upon her experience with the prosecutor and her observation of the prosecutors conduct of the jury selection process. Having made that determination, a reasonable jurist would not have found it necessary to double check the accuracy of the prosecutors "afterthought" reasons for making the challenge where the factual accuracy of the reason had not even been questioned by defense counsel.
Finally, we point out that this is not a case where the lack of record support for one of the proffered reasons for the challenge undermines the prosecutors credibility such that the other apparently valid reasons must be rejected as pretextual. (Cf. U.S. v. Chinchilla (1989) 874 F.2d 695, 699 ["the fact that two of the four proffered reasons do not hold up under judicial scrutiny militates against the[] sufficiency" of two acceptable bases for the challenge].)
Wests Wheeler-Batson motion was properly denied.
DISPOSITION
The judgment is affirmed.
We concur:
JONES, P.J.
NEEDHAM, J.