Opinion
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. No. 5-061627-6
Marchiano, P.J.
Defendant Latanya White was convicted by a jury of possession of cocaine base for sale (Health & Saf. Code, § 11351.5), imposition of sentence was suspended, and she was granted probation. Defendant contends that the judgment must be reversed because the court erred in granting the prosecution’s motion under Batson (Batson v. Kentucky (1986) 476 U.S. 79), and Wheeler (People v. Wheeler (1978) 22 Cal.3d 258) to set aside her peremptory challenge to a prospective juror, and in reseating the challenged juror to serve on the jury in the case. We find no Batson-Wheeler error, and no abuse of the court’s discretion to reseat the juror in question. We thus affirm the judgment.
I. BACKGROUND
The defense made two Batson-Wheeler motions before the motion at issue in the appeal. In each of the three instances, the peremptory challenge was exercised against the juror in open court, counsel making the motion asked to approach the bench, and the Batson-Wheeler issues were discussed outside the presence of the jury. The challenged jurors were not excused pending resolution of the motions. The court granted the second defense motion as to one of the jurors the prosecution challenged (Juror No. 64), as well as the prosecution motion as to one of the jurors the defense challenged (Juror No. 70), and the two challenged jurors were reseated on the jury. Defendant requested this remedy on her motion, and she does not dispute that the prosecution assented to this remedy on its motion.
When defense counsel argued that defendant would be prejudiced by the reseating of Juror No. 70 because “[h]e knows I excused him,” the prosecutor responded that Juror No. 64 likewise “knows I tried to excuse her. That’s how the process works.” No formal objection was made. The prosecutor thus implicitly consented to the reseating of improperly challenged jurors.
The prosecution’s motion was heard in chambers off the record; after the jury was sworn, the court recapitulated what was said during that discussion. The prosecution argued that a prima facie case of discrimination had been established because four out of five of the jurors the defense challenged were white males. The court found that the last two of the four challenges, those against Juror Nos. 65 and 70, created a prima facie case. After hearing defense counsel’s explanations, the court found that he had a good faith, nondiscriminatory ground for excusing Juror No. 65. The court made a contrary finding with respect to Juror No. 70.
The court had previously observed in connection with the defense motion as to Juror No. 64, an Asian woman, that the jury pool was “very diverse.” “We are not talking about an all-white jury pool here. [¶] Of the twelve in the box right now, even with [Juror No. 64] out, we have Juror No. 1, appears to be Latino; Juror No. 4, Asian; Juror No. 5, Asian; Juror No. 6, African-American; Juror No. 9, Latino; Juror No. 11, Asian.”
Juror No. 70’s voir dire with the court was as follows:
“Q. You are a demo partner?
“A. Yes.
“Q. I got to hear what a demo partner is.
“A. That’s a nice way of saying that we demonstrate different products in the store. Basically we cook.
“Q. You are the one who gives out the freebies.
“A. Yes.
“Q. We like you. And you’ve been doing that for four years.?
“A. Yes.
“Q. What did you do before that?
“A. I worked for Target and before that I worked for Longs.
“Q. Doing the same sort of work or retail?
“A. Different types of works.
“Q. Okay. And you’ve been on a jury before.
“A. Yes. I was on a burglary case.
“Q. Okay. How long ago was that?
“A. About 12 years.
“Q. Was it a felony or misdemeanor?
“A. It was a felony.
“Q. Okay. Was that here in Contra Costa County?
“A. Yes.
“Q. And was the jury able to reach a verdict?
“A. We did.
“Q. Anything about that experience affect your ability to be fair and impartial in this case?
“A. No.
“Q. Anything about the case you’ve heard so far give you any concern about your ability to be fair and impartial?
“A. I can do it.”
Juror No. 70’s exchange with the prosecutor was as follows:
“Q. All right. [Juror No. 70]?
“A. Yes, ma’am.
“Q. Actually all of you, are you all okay with the C.S.I. Law & Order thing?
The prosecutor had previously asked prospective jurors whether they could accept that the case would not involve any of the sophisticated scientific evidence featured in crime shows on television.
“A. I don’t even watch it.
“Q. I want nods. You need to forget about all of that. [¶] Tell me what you do in your free time.
“A. I take care of my wife. She is bed ridden so she takes up all my time.
“Q. You take care of your wife. How often do you get to work then?
“A. I work five days a week and then we have someone who comes in for like three hours four days a week to take care of her.”
Juror No. 70’s exchange with defense counsel was as follows:
“Q. [Juror No. 70], how are you, sir?
“A. Fine.
“Q. Is it your wife that is disabled?
“A. Yes.
“Q. You help care for her?
“A. Yes.
“Q. And would you be thinking about her if you were to serve on this jury or how would that impact you?
“A. I could sit knowing I have somebody in there to watch her.
“Q. Okay. If you were in my place, would you want someone with your state of mind
“The Court: Counsel, we are not—approach for a moment. (Discussion held off the record.)
“Q. Sorry about that. Let me ask you this: Would you favor the prosecution in a case like this where the prosecution is claiming and alleging possession for sale?
“A. I’d have to hear the evidence before I could render any kind of decision.
“Q. Okay. But you know yourself and I don’t know you too well. I just met you today. But in criminal cases in general, do you find yourself favoring the defendant or the prosecution?
“A. No. Never. The one case I sat on, I had no opinion about it until I heard all of the evidence.
“Q. And now, that was
“A. That was a burglary case.
“Q. Okay. And any problem following the law that we’ve
“A. No.
“Q. —outlined here.
“A. No.”
Defense counsel told the court in the chambers conference that he struck Juror No. 70 because he had served as a juror on a burglary case, and having “convicted once would convict again more easily.” The court questioned this explanation because “there were numerous jurors who [were] not white males and not stricken by [defense counsel] who had also sat on juries,” and the voir dire did not reveal what verdict Juror No. 70’s jury had reached. Counsel said that he inferred, from the “very quick” and “very firm” way Juror No. 70 answered the question about whether a verdict had been rendered, that his jury had voted to convict. Counsel also said in chambers that he thought Juror No. 70 watched a lot of crime shows while staying at home and caring for his wife, and was “too interested in the process.”
When the matter was discussed on the record, defense counsel added that he did not like Juror No. 70’s “looks” and “body language,” and asked the court to listen to other reasons not mentioned in chambers why he believed that Juror No. 70 was a “prosecution-biased witness.” The court declined to entertain additional reasons for challenging Juror No. 70, and denied defendant’s request to excuse that juror because he knew that the defense had challenged him (see fn. 1, ante).
The court later rejected defendant’s arguments for a new trial, including those now advanced on appeal.
II. DISCUSSION
A. Batson-Wheeler Ruling
Peremptory challenges may not be used to strike prospective jurors on the basis of group bias. (Batson, supra, 476 U.S. at p. 89; Wheeler, supra, 22 Cal.3d at pp. 276-277.) “[D]efense counsel, like prosecutors, are precluded from peremptorily excusing prospective jurors on racial, ethnic or gender grounds.” (People v. Willis (2002) 27 Cal.4th 811, 813 (Willis).) The party making a Batson-Wheeler motion must initially make out a prima facie case with evidence permitting an inference of discriminatory purpose. (Johnson v. California (2005) 545 U.S. 162, 168, 170.) The burden then shifts to the challenger to provide a neutral, unbiased explanation for the challenge. (Batson, supra, at pp. 97-98; Wheeler, supra, at p. 281.) The trial court must then determine whether the moving party has established purposeful discrimination. (Batson, supra, at pp. 97-98.)
“[W]e rely on the good judgment of the trial courts to distinguish bona fide reasons for [the] peremptories from sham excuses belatedly contrived to avoid admitting acts of group discrimination.” (Wheeler, supra, 22 Cal.3d at p. 282.) The trial court must determine whether the proffered explanations are credible, and “should be suspicious when presented with reasons that are unsupported” in the record. (People v. Silva (2001) 25 Cal.4th 345, 385 (Silva).) “ ‘ “[I]f the trial court makes a ‘sincere and reasoned effort’ to evaluate the nondiscriminatory justifications offered, its conclusions are entitled to deference on appeal.” ’ [Citations.] In a case in which deference is due, ‘[t]he trial court’s ruling on this issue is reviewed for substantial evidence.’ [Citation.]” (People v. Higgins (2006) 38 Cal.4th 175, 227 (Higgins).)
The trial court made a sincere and reasoned effort to evaluate defense counsel’s explanations in this case, distinguishing between the reasons offered for striking Juror No. 65, which it found were genuine, and those offered for striking Juror No. 70, which it found were not. We must therefore defer to the court’s determination and affirm it if it is supported by substantial evidence. (Higgins, supra, 38 Cal.4th at p. 227.) An explanation that is not supported by the record may be a pretext for discrimination (Silva, supra, 25 Cal.4th at p. 385), and the record, viewed in the light most favorable to the decision on the motion, did not support the explanations here. The defense claimed concern over a verdict previously rendered by Juror No. 70 and his watching of crime shows on television, but the voir dire did not reveal whether the prior verdict was a conviction, and Juror No. 70 denied watching those TV shows. Accordingly, substantial evidence supported the trial court’s rejection of those explanations.
Defendant contends that the record supported her counsel’s professed belief that Juror No. 70 was “too interested in the process” because, to quote her appellate briefs, Juror No. 70 exhibited “a zeal to give the ‘proper’ answer, to be the ‘A’ student, an eagerness to be selected as a juror.” However, nothing in the record substantiated counsel’s implicit assumption that Juror No. 70’s alleged desire to serve on the jury stemmed from an eagerness to render a conviction. We note also that Juror No. 70 expressed disappointment when he was reseated: “The Court: [Juror No. 70] [Y]ou’re going to stick around for awhile. [¶] Potential Juror: What a disappointment.” While that remark was made after the ruling on the motion, and the tone could have disclosed a contrary sentiment, it is not clear from the record that Juror No. 70 was in fact anxious to be selected.
We find no cause to substitute our judgment for that of the trial court on the merits of the prosecution’s Batson-Wheeler motion.
B. Reseating of the Juror
Defendant contends that the court erred by reseating Juror No. 70, but the Willis case permits the use of that remedy for a Batson-Wheeler violation with the agreement of the moving party. (See also Rivera v. Illinois (2009) ___ U.S. ___ [129 S.Ct. 1446, 1454] [jurors are not constitutionally disqualified to serve whenever they are aware that a party has challenged them].) Here, as in Willis, after the prosecution’s Batson-Wheeler motion was granted, “the trial court, acting with the prosecutor’s assent, had discretion to consider and impose remedies or sanctions short of outright dismissal of the entire jury venire.” (Willis, supra, 27 Cal.4th at p. 814.) “[S]ituations can arise in which the remedy of mistrial and dismissal of the venire accomplish nothing more than to reward improper voir dire challenges and postpone trial. Under such circumstances, and with the assent of the complaining party, the trial court should have the discretion to issue appropriate orders short of outright dismissal of the remaining jury, including... reseating any improperly discharged jurors if they are available to serve.” (Id. at p. 821; see also id. at p. 818 [this remedy is permissible under Batson], id. at p. 823 [reseating vindicates rights of improperly discharged jurors].) We find no abuse of the court’s discretion to reseat Juror No. 70.
Defendant observes that the trial court here did not use either of the procedures identified in Willis “to ensure against undue prejudice to the party unsuccessfully making the peremptory challenge.” (Willis, supra, 27 Cal.4th at p. 821; see id. at pp. 821-822 [airing all challenges at sidebar conferences; requiring counsel to privately advise each other of anticipated peremptory challenges]; but see id. at p. 822 [requiring all challenges at sidebar may be unduly burdensome].) However, the opinion states that “courts may employ” these procedures (id. at p. 821, italics added), not that the procedures must necessarily be employed, and goes on to direct that, “if the complaining party does effectively waive its right to mistrial, preferring to take its chances with the remaining venire, ordinarily the court should honor that waiver” (id. at p. 824). Willis thus cannot be fairly read to require reversal whenever a juror who knows he or she has been challenged by the defense is reseated.
Nor is any prejudice apparent. Shortly after being reseated, Juror No. 70 took an oath to render a verdict based solely on the evidence presented and the instructions of the court. (http://www.courtinfo.ca.gov/jury/step1.htm [as of Apr. 28, 2009] [juror’s oath].) He was again admonished in the court’s instructions to find the facts based only on the evidence, and to do so without bias or prejudice. Nothing in the record suggests that Juror No. 70’s verdict was influenced by a bias against defendant in violation of this oath and these instructions. To the contrary, Juror No. 70 was one of three jurors who provided defendant with declarations in support of her new trial motion stating that evidence outside the record had been considered during deliberations. Juror No. 70’s willingness to assist defendant in this fashion suggests that he harbored no resentment toward her because of her counsel’s attempt to excuse him from the jury at the outset of the case.
III. DISPOSITION
The order for probation is affirmed.
We concur: Margulies, J., Graham, J.
Retired judge of the Superior Court of Marin County assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.