Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Kern County No. DF007457. Richard J. Oberholzer, Judge.
Johanna Kate Johnston, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Lloyd G. Carter and Leslie W. Westmoreland, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
DAWSON, J.
Following a jury trial, Marcos Alberto Cayado (appellant) was found guilty of possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)). In a bifurcated proceeding, the trial court found true the allegation that appellant had a prior strike (§ 1170.12) and served a prior prison term (§ 667.5, subd. (b)). The trial court sentenced appellant to a total term of three years eight months in state prison: the low term of 16 months, doubled pursuant to the three strikes law, plus one year consecutive for the prior prison term.
On appeal, appellant contends the trial court’s voir dire lightened and shifted the prosecution’s burden of proof and that it erred when it denied his Batson/Wheeler motion. We disagree and affirm.
Batson v. Kentucky (1986) 476 U.S. 79; People v. Wheeler (1978) 22 Cal.3d 258.
Recitation of the facts is brief as they are not at issue.
Appellant was detained on a parole violation. During a booking search, the officer found a small bindle containing 90 milligrams of methamphetamine in appellant’s small coin pocket in his pants.
DISCUSSION
1. Did the trial court lighten or shift the prosecution’s burden of proof during voir dire?
Appellant contends the trial court both lightened and shifted the prosecution’s burden of proof by statements it made during voir dire. He first claims that the trial court lightened the prosecutor’s burden of proof by equating reasonable doubt to everyday decisionmaking in the jurors’ lives. He also contends the trial court shifted the burden of proof to the defense when it “implied that, in the absence of any evidence from the defense, the jury must accept the prosecution’s theory.” We disagree with both of his contentions.
“The reasonable-doubt standard plays a vital role in the American scheme of criminal procedure. It is a prime instrument for reducing the risk of convictions resting on factual error. The standard provides concrete substance for the presumption of innocence—that bedrock ‘axiomatic and elementary’ principle whose ‘enforcement lies at the foundation of the administration of our criminal law.’ [Citation.]” (In re Winship (1970) 397 U.S. 358, 363.)
Due process “protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he [or she] is charged.” (Id. at p. 364.)
We first address appellant’s claim that, during voir dire, the trial court lightened the prosecution’s burden of proof by equating reasonable doubt to everyday decisionmaking. The record shows that during jury selection the trial court, in a rather informal way, questioned the jurors on personal information interspersed with questions on what types of verdicts were possible (guilty or not guilty) and what defense counsel is required to do to prove the defendant not guilty (nothing, because it is the prosecutor’s job to prove the guilt of the defendant), before asking Juror No. 686899 the following:
“[The Court:] Ms. (686899), will you require that [the prosecutor] convince you beyond all possible doubt before you return a guilty verdict?
“[Juror No. ](686899): Yes.
“The Court: You don’t want to walk out of this courtroom with any doubt in your mind at all if you return a guilty verdict, do you?
“[Juror No. ](686899): Right.”
The court continued asking other jurors this same question, and appellant specifically objects to the following colloquy between the court and prospective jurors:
“[The Court:] So—I forgot what I asked. What did I ask, Ms. (686899)? Oh, yeah. You want to be convinced—you don’t want there to be any doubt in your mind if you render a guilty verdict. Okay. [¶] Ms. (497025), how about that? How many decisions have you made in your life where there was absolutely no doubt in your mind?
“[Juror No. ](497025): Not too many.
“The Court: Not too many. Probably be difficult to find any. [¶] So what’s the solution to our problem, Ms. (534210)?
“[Juror No. ](534210): I don’t know. Just have to listen to both sides.
“The Court: Listen to both sides?
“[Juror No. ](534210): Listen to him really carefully.
“The Court: Maybe listen to one side. There might not be any other side to listen to; right?
“[Juror No. ](534210): Right.
“The Court: It’s true. You do have to wait until you’ve heard, because [defense counsel] does have an opportunity to do something, if you’d like to. So you wait until you’ve heard all the evidence—all the evidence—before you start making any decisions. [¶] But what about this thing? What about this issue that Ms. (686899) has now brought up, Ms. (483835)? What about that? She wants to be convinced beyond all possible doubt.
“[Juror No. ](483835): Isn’t that what everybody wants?
“The Court: Everybody may like that, but if you look back in your life—we do have human beings here. Can you think of anything you were beyond all possible doubt of? No. And here something happened. We know that something happened. We know that. He got arrested and was charged with a crime, but none of us were there. None of us were there. [¶] And, Ms. (686899), you want [the prosecutor] to convince you beyond all possible doubt?
“[Juror No. ](686899): They say all reasonable.
“The Court: There you go. You got it. It’s proof beyond a reasonable doubt, not beyond all possible doubt. [¶] I am going to tell you at the end of this trial his burden is to convince you beyond a reasonable doubt, not beyond all possible doubt. What do we mean by that? We mean an abiding conviction of the truth of the charge. Okay? Good.”
In People v. Brannon (1873) 47 Cal. 96, upon which appellant relies, the trial court instructed the jury that a guilty verdict was authorized if the evidence satisfied the jury of the accused’s guilt to a “‘certainty as would influence the minds of the jury in the important affairs of life’” (Id. at p. 97.) The Supreme Court held that equating proof beyond a reasonable doubt to everyday decisionmaking in a juror’s life impermissibly lowered the burden of proof to that of a preponderance of the evidence. Accordingly, the judgment was reversed because the jury had not received a proper description of the prosecution’s burden of proof beyond a reasonable doubt. (Ibid.)
In People v. Johnson (2004) 115 Cal.App.4th 1169, also relied on by appellant, the trial court, during jury selection, “amplified on the concept of reasonable doubt” by noting that although “‘we all have possible doubt whether we will be here tomorrow,’” we “‘take vacations’” and “‘get on airplanes’” because we “‘have a belief beyond a reasonable doubt that we will be here tomorrow.’” (Id. at p. 1171.) The appellate court rejected the notion “that people planning vacations or scheduling flights engage in a deliberative process to the depth required of jurors,” or “finalize their plans only after persuading themselves that they have an abiding conviction of the wisdom of the endeavor,” and “make such decisions while aware of the concept of ‘beyond a reasonable doubt.’” (Id. at p. 1172.) The court reversed the judgment and ordered a new trial on the ground that “the trial court’s attempt to explain reasonable doubt had the effect of lowering the prosecution’s burden of proof.” (Ibid.)
And finally, appellant relies on a case from this court, People v. Johnson (2004) 119 Cal.App.4th 976, in which the trial court, in explaining the standard of reasonable doubt, asked a prospective juror at length whether she had ever made a decision “‘where there has been absolutely no doubt in your mind.’” When the juror replied that she had no doubt that she wanted to have children, the court questioned whether she had had some doubt whether she could support them properly. When the juror stated that had gone through her mind, the court stated, “‘So there was doubt, wasn’t there,’” “‘[s]o we have eliminated that one,’” and asked the juror to come up with another situation in which she had absolutely no doubt. The juror then stated that she wanted to go to college, but acknowledged, at the court’s prodding, that she had had some doubt about leaving home to do so. The court again said, “‘Okay. We have eliminated that one,’” and stated “‘We will be here for a long long time and never come up with anything—you won’t.’” (Id. at pp. 979-980.) The following then occurred between the court and the prospective juror:
“‘[The Court:] What are you going to do when you’re here on a jury and you want to be convinced beyond all possible doubt when it’s never happened in your life?
“‘[The Juror:] Good question.
“‘[The Court:] There is a solution to it. What’s the solution?
“‘[The Juror:] Beyond a reasonable doubt.
“‘[The Court:] Very good. See how smart this jury is getting. You’re really now getting into it. That’s what I like. [¶] If you work at it, all of you can figure it out.’” (People v. Johnson, supra, 119 Cal.App.4th at p. 980.)
At one point, the trial court in Johnson told the jurors, “‘If there is no doubt in your mind, then I can tell you you were brain dead during the trial ….’” (People v. Johnson, supra, 119 Cal.App.4th at p. 980.) The trial court used an additional lengthy question and answer session with the jurors, including how they chose a restaurant and drove through an intersection, which we found to be error as it “equate[d] proof beyond a reasonable doubt to everyday decisionmaking in a juror’s life.” (Id. at p. 981.)
The trial court’s error in Johnson was compounded when the prosecutor, in argument to the jury, reiterated what the trial court had said by characterizing a juror who could return a guilty verdict without “some doubt” as to the defendant’s guilt as “brain dead,” and equating proof beyond a reasonable doubt to everyday decisionmaking. (People v. Johnson, supra, 119 Cal.App.4th at p. 983.)
Although CALJIC No. 2.90 was properly given, we found error, stating that “the court’s tinkering with the statutory definition of reasonable doubt, no matter how well intentioned, lowered the prosecution’s burden of proof below the due process requirement of proof beyond a reasonable doubt.” (People v. Johnson, supra, 119 Cal.App.4th at p. 985.)
Here, the trial court did not compare the definition of reasonable doubt to “everyday” decisionmaking. While the trial court did ask one juror “How many decisions have you made in your life where there was absolutely no doubt in your mind,” and asked another juror “but if you look back in your life—we do have human beings here[,] [c]an you think of anything you were beyond all possible doubt of,” it did not dwell on these statements, nor did it demand examples of such decisions from the jurors or provide the jury with examples as it had in both Johnson cases. Nor did the court, in the form of its questioning here, imply that these types of decisions were routine, or made on an everyday basis, such as choosing a restaurant or a driving route, or in planning a vacation.
In addition, following closing argument, the trial court read the standard language of CALJIC No. 2.90 to the jury, without elaboration, as follows:
“A Defendant in a criminal action is presumed to be innocent until the contrary is proved, and in a case of a reasonable doubt whether his guilt is satisfactorily shown, he is entitled to a verdict of not guilty. This presumption places upon the People the burden of proving him guilty beyond a reasonable doubt. [¶] Reasonable doubt is defined as follows: It is not a mere possible doubt because everything relating to human affairs is open to some possible or imaginary doubt. It is that state of the case which, after the entire comparison and consideration of all the evidence, leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction of the truth of the charge.”
We reject appellant’s claim that the trial court lowered the prosecution’s burden of proof below the due process requirement of proof beyond a reasonable doubt.
We also reject appellant’s claim that a number of statements made by the trial court during voir dire unconstitutionally shifted the burden to him in violation of his right to due process. (In re Winship, supra, 397 U.S. at p. 364 [due process requires state bear burden of proving beyond a reasonable doubt “every fact necessary to constitute the crime” with which defendant is charged].) Appellant first claims the trial court shifted the burden “by repeatedly telling the jurors that they had to ‘figure out … what exactly happened’ from the evidence,” which “implied that, in the absence of any evidence from the defense, the jury must accept the prosecution’s theory.”
Appellant cites to three examples in the record, which we repeat here. In the first, the trial court addressed a juror, stating:
“[The Court:] Ms. (483835), we said you are going to hear evidence in this case. By the way, evidence is anything that’s presented to your senses to try to prove the existence or nonexistence of a fact. You will determine what the facts are.… [¶] … [¶] … Ms. (635433), what is it you are trying to figure out from that evidence?
“[Juror No. ](635433): What exactly happened.
“The Court: Very good. What happened. That’s what you are trying to figure out. Because as I said before, none of us were there; so you have to figure out what happened. [¶] Have you ever had three people come up to you and describe an event that you weren’t at?
“[Juror No. ](635433): Yes. It’s very confusing.
“The Court: Because all three were there. They describe it the same way, don’t they?
“[Juror No. ](635433): Yes.
“The Court: All three were there. All three describe it the same way. Is that true?
“[Juror No. ](635433): Not always.
“The Court: Usually not ever. Right? You get three different versions of three people who were at the same exact event and from that you have to kind of form in your own mind a picture of what happened. It’s not too much different when you are sitting as a juror. In a jury you are listening to somebody describe something that happened in a time and place that none of us were at, and from that you have to figure out, as Ms. (635433) said, what happened. That’s the first job you have. What happened? It’s up to the people to convince you of what happened beyond a reasonable doubt. You have to figure out what happened.”
In the second instance, the court, in addressing another juror, stated, “Ms. (657866), Ms. (635433) said that the first thing you are going to figure out is what happened. After you figure out what happened, what’s the next decision you are going to make as a juror?” And in the third instance, the court, while addressing another juror, stated, “You are going to bring your common sense in and pull it all together with the twelve [jurors] and figure out what happened.”
According to appellant, “The purported obligation to ‘figure out what happened’ shifts the burden to the defense because it implies that the jury must choose some scenario of ‘what happened,’” despite the fact that a jury might conclude that it does not know what happened because the prosecution has not proved each element beyond a reasonable doubt. We disagree.
Each time the trial court stated that the jury was to “figure out what happened,” it did so in the context of a juror’s duty to determine the facts from the evidence. The trial court’s comments in no way implied that the prospective jurors were to choose a scenario or accept the prosecution’s version of what happened.
We also reject appellant’s claim that, when the trial court stated “It’s not too much different when you are sitting as a juror,” in the first exchange above, that the trial court “encouraged the jurors to weigh inconsistent accounts of ‘what happened’ in the same casual way they do in everyday life.” Instead, the trial court was simply explaining the jury’s duty to determine the facts from the evidence.
Appellant also contends that the trial court lightened the prosecution’s burden by misstating the law when it told the prospective jurors that they must wait until they have heard all the evidence, but failed to include “and the arguments of counsel,” before making a decision. Appellant objects to the following exchange between the court and a prospective juror:
“The Court: Maybe listen to one side. There might not be any other side to listen, to right?
“[Juror No. ](534210): Right.
“The Court: It’s true. You do have to wait until you’ve heard, because [defense counsel] does have an opportunity to do something, if you’d like to. So you wait until you’ve heard all the evidence—all the evidence—before you start making any decisions.”
The context of this exchange began with the trial court telling the prospective jurors that “[appellant] has to do nothing” because [t]he prosecutor has to prove the guilt of [appellant].” The trial court then explained the prosecutor’s burden of proof. But telling the prospective jurors that they were to make a decision after all the evidence was heard, without also including “and the arguments of counsel,” did not mean that the trial court was instructing the jury not to listen to counsel’s arguments before deliberating.
We also reject appellant’s claim that two additional comments by the trial court impermissibly shifted the burden of proof to the defense in violation of his right to due process. First, appellant objects to the trial court’s statement that “[the prosecutor] is going to present evidence to convince you of the guilt of [appellant],” but, in contrast, stated that defense counsel “is going to present evidence to try to convince you of the innocence or to prove that his client is innocent.” (Italics added.) Appellant objects to the deletion of the word “try” in the statement concerning the duty of the prosecutor.
Appellant has completely mischaracterized the statement to which he objects. The statement concerning defense counsel’s obligation was made in the form of a question to a juror, and made within the context that the defense has no obligation to prove anything. In addition, just moments earlier, the trial court had stated that the prosecutor “is going to present evidence to you to try to convince you of the guilt of [appellant].” (Italics added.) The trial court’s comments did not “subtly undermine the defense by implying that prosecution evidence does convince, while defense evidence only tries to convince,” as appellant claims.
As explained by the trial court early in the process of voir dire, “if I am asking the same question, I am looking for a different answer.”
Lastly, appellant objects to the trial court’s rhetorical question, “So why would [defense counsel] want to try to present evidence to prove his client is innocent when you don’t even make that determination?” But again, appellant takes this statement, which was made early in voir dire, out of context. The question was asked after the trial court explained that “innocent” was not an option for a verdict, only “guilty or not guilty,” and a prospective juror incorrectly stated that the defense’s job was to prove the defendant’s innocence. The trial court was attempting to impress upon the prospective jurors that defense counsel has to do “nothing” because it is up to the prosecutor to prove the defendant’s guilt. The trial court repeatedly stated during voir dire that the burden of proof was on the prosecution. This particular question did not undermine the presumption of innocence, as suggested by appellant.
In sum, we reject appellant’s claim that the trial court’s voir dire constituted instructional error.
2. Did the trial court err when it denied appellant’s Batson/Wheeler motion?
Appellant is Hispanic. Near the end of jury selection, defense counsel made a Batson/Wheeler motion, explaining that five of the prosecution’s six peremptories “so far have all been Hispanics.” According to defense counsel, the prosecution’s actions constituted “a clear prima facie showing of racial disparity in the exercise of peremptory challenges.” The trial court denied the motion, finding appellant had not made a prima facie case of discrimination. Later, the court listened to reasons given by the prosecution for removing the jurors in question, found that those reasons were race-neutral, and then rejected appellant’s Batson/Wheeler motion. The record supports the trial court’s determinations.
We begin with an overview of the law regarding Batson/Wheeler motions as set forth recently by our Supreme Court in People v. Stanley (2006) 39 Cal.4th 913:
“‘Both the state and federal Constitutions prohibit the use of peremptory challenges to remove prospective jurors based solely on group bias. (Batson, supra, 476 U.S. at p. 89; Wheeler, supra, 22 Cal.3d at pp. 276-277.) Recently, “the United States Supreme Court reaffirmed that Batson states the procedure and standard to be employed by trial courts when challenges such as defendant’s are made. ‘First, 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.] 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, “if a race-neutral explanation is tendered, the trial court must then decide … whether the opponent of the strike has proved purposeful racial discrimination.” [Citation.]’” (People v. Cornwell (2005) 37 Cal.4th 50, 66-67, quoting Johnson v. California (2005) 545 U.S. 162, 168, fn. omitted (Johnson).) The high court clarified that “a defendant satisfies the requirements of Batson’s first step by producing evidence sufficient to permit the trial judge to draw an inference that discrimination has occurred.” (Johnson, supra, at p. 170, reversing in part People v. Johnson (2003) 30 Cal.4th 1302, 1318 [requiring the defendant to “show that it is more likely than not the other party’s peremptory challenges, if unexplained, were based on impermissible group bias”].)
“‘In determining whether the defendant ultimately has carried his burden of proving purposeful racial discrimination, “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.]’” (People v. Reynoso (2003) 31 Cal.4th 903, 919.) “[T]he trial court is not required to make specific or detailed comments for the record to justify every instance in which a prosecutor’s race-neutral reason for exercising a peremptory challenge is being accepted by the court as genuine.” (Ibid.) Inquiry by the trial court is not even required. (Id. at p. 920.) “All that matters is that the prosecutor’s reason for exercising the peremptory challenge is sincere and legitimate, legitimate in the sense of being nondiscriminatory.” (Id. at p. 924.) A reason that makes no sense is nonetheless “sincere and legitimate” as long as it does not deny equal protection. (Ibid.)’ (People v. Guerra (2006) 37 Cal.4th 1067, 1100-1101.)” (People v. Stanley, supra, 39 Cal.4th at p. 936.)
The record shows that following the first peremptory challenge by the prosecutor of a White female (juror No. 635433), the prosecutor used his second peremptory challenge to excuse juror No. 693506, a Hispanic female. Juror No. 693506 was a single mother, attended school, and worked as a volunteer at a learning center. She had previously worked seasonally as a sales clerk at a retail clothing store.
The prosecution’s third peremptory challenge was to excuse juror No. 529561, a Hispanic male. Juror No. 529561 stated that he had previously been on both a civil and criminal jury panel. Juror No. 529561 was married, worked for an agricultural business, and he and his wife had “eight kids: Mine, hers, and ours.” Juror No. 529561 stated that, eight years ago, he had been “pulled over” and given a sobriety test, which resulted in him being taken “to their office” for an additional three tests. Juror No. 529561 explained that he passed the tests, and when another was attempted, “I told him where to go.” He did not think he would hold the incident against the law enforcement officer scheduled to testify in the current case.
The prosecution’s fourth peremptory challenge was to excuse juror No. 497025, a Hispanic female. During initial questions by the trial court, Juror No. 497025 stated, at one point, that “it’s hard for me to understand everything …” and “to judge somebody—I don’t understand pretty good English.” Juror No. 497025 described herself as married with two young children. She was a homemaker taking some college classes, and she worked part time as a “CNA.” Her husband worked in the oil fields. Juror No. 497025 was born in Mexico and had lived in Los Angeles for 18 years.
The prosecution’s fifth peremptory challenge was to excuse juror No. 687448, a Hispanic female. Juror No. 687448 was single, had been in Kern County for 11 years, and had three children, two in high school and one who worked for Save Mart. Juror No. 687448 worked for a department store distribution center in Delano. Juror No. 687448 stated that “all” of her brothers had been charged with drug use and arrested on those charges, but she did not think this would affect her impartiality in the current case.
The prosecution’s sixth peremptory challenge was to excuse juror No. 505277, a Hispanic male. Juror No. 505277 had lived in Bakersfield since 1979, he had worked for the telephone company for 27 years, and had been retired for 10. He had been married for 52 years and had two adult children. Juror No. 505277 stated that he had had a bad experience with a police officer “many years ago” in the “mid-’50s.” Juror No. 505277 described the incident in which he had his son, then five or six years old, with him in the car when a police officer stopped him, “grabbed” him by the collar, shook him, and asked why he had not slowed down. When Juror No. 505277 told the officer he had, the officer insisted he had not, and “the more I disagreed with him, the harder he pulled. By then my little boy is crying ….” Juror No. 505277 described the incident as the only bad experience he had had with a police officer and stated he would not hold it against the officer who would testify in the current case.
Following this final challenge, defense counsel made a Batson/Wheeler motion. He requested a new panel, arguing that the last five peremptory challenges by the prosecution “have all been Hispanics, obvious Hispanics.” Defense counsel added that the only non-Hispanic, the first peremptory challenge, “happen[ed] to have a sister who majors in Latino studies .…” Counsel continued, stating, “[I]t looks to me like a clear prima facie showing of racial disparity in the exercise of peremptory challenges.”
In response to defense counsel’s argument, the trial court stated, “I don’t find that you’ve made the necessary showing … because I do note that the People had accepted this jury prior to some of those being excused. [¶] I also note that right now there are—one, two, three, four, five—six jurors who are still on part of the twelve who are all—at least, as you indicated, have hispanic names. This is a large panel of Hispanics .…”
Defense counsel cited to a “Miller L.” case and argued that acceptance of the partial panel was an incorrect standard to use, but that the court instead was to determine “whether there is reasonable cause to believe there is a pattern being established of a racial disparity in the exercise of peremptories.” Counsel continued, “A case can be made with one if their answers are sufficiently distinguishable from other similarly situated jurors. You don’t even have to see a pattern. You just have to see one juror,” but that here “it looks like a definite pattern.”
We believe this reference is to Miller-El v. Dretke (2005) 545 U.S. 231.
The trial court stated it was “not familiar enough” with the case cited by defense counsel, asked for briefing on the issue, and suspended juror selection until argument could be heard.
At the subsequent hearing, the prosecutor submitted on the issue, stating “I would just point out that the panel overall was predominantly hispanic .…” The prosecutor also stated that he would be “glad to address” his reasoning on the different peremptories, if the court requested it.
Defense counsel argued that excusing five Hispanic jurors in a row satisfied the Johnson v. California requirement that a reasonable inference of systematic discrimination occurred. Counsel argued, “I don’t see that all five of them had answers that were significantly distinguishable from others of different ethnic groups on the panel.” Defense counsel argued that this “triggers” the second step, which is that the prosecution be required to state its reasons, and further, as required by Miller-El and Johnson, “[m]erely because the prosecution can articulate some reasons isn’t the end of the analysis,” and the court is then required “to make an independent weighing of those reasons .…”
The trial court noted that defense counsel had also dismissed two Hispanics, and that of the 12 original jurors seated, eight had Hispanic names, making it difficult to reach “that reasonable inference to which [defense counsel] has alluded.” The prosecutor agreed and noted that “this is overall a predominantly Hispanic jury panel, and it would be very difficult to bump six members of the jury panel without having a significant amount of them being hispanic.”
The trial court did ask that the prosecutor state, for the record, reasons for his peremptory challenges. The prosecutor then proceeded to give the following explanation for his exercise of peremptory challenges.
He stated that the main reason he excluded juror No. 505277 was that he described in detail a negative police experience and that his case “is essentially police officers.” Similarly, juror No. 529561 had also described a negative police experience. The reason for dismissing juror No. 497025 was that “she said in open court that she was having a difficult time understanding everything that was being said.” The prosecutor stated that juror No. 693506, who described herself as a single mother and volunteer, was “very young and still lives with her parents,” and lacked “taking significant responsibilities” or “having significant life experience,” and “I didn’t want her taking responsibility for the verdict in this case.” Finally, the prosecutor stated that he found juror No. 687448 “puzzled and not grasping” the concepts initially discussed by the court with the panel, and since “[t]his is going to be a fast trial,” “I need people that can grasp the evidence in that short period of time well enough to make a decision.” He also noted that juror No. 687448 had several relatives with “drug problems, which I think would make it difficult for her to think through the case clearly.”
Defense counsel disagreed, stating he thought the prosecutor’s reasons were inadequate in that (1) he had excused juror No. 497025 because “she spoke with a hispanic dialect” and was “primarily a Spanish speaker”; (2) he excused juror No. 687448 because he didn’t like her facial expressions; and (3) he excused juror No. 693506 because he did not like young, single mothers on the jury.
The trial court reiterated that it still “really question[ed]” whether a prima facie case had been made. Nevertheless, it then stated that it had heard the prosecutor’s reasons and found then to be “race-neutral justifications.” The trial court denied the motion, stating that defense counsel had not proved purposeful racial discrimination.
In the instant case, as set forth above, the prosecutor articulated race-neutral reasons for excusing the prospective jurors in question, and thereby satisfied step two of Batson. As the Supreme Court explained in Purkett v. Elem (1995) 514 U.S. 765, “The second step of this process does not demand an explanation that is persuasive, or even plausible.” (Id. at pp. 767-768.) What is required is a race-neutral explanation: “‘At this [second] step of the inquiry, the issue is the facial validity of the prosecutor’s explanation. Unless a discriminatory intent is inherent in the prosecutor’s explanation, the reason offered will be deemed race neutral.’ [Citations.]” (Id. at p. 768.)
Since step two was satisfied, the trial court was obligated in step three to evaluate “‘all the circumstances of the case’” to determine whether the prosecutor’s race-neutral reasons for excusing the prospective jurors were “‘sincere and credible,’” or whether the defendant instead sustained his burden of proving unlawful discriminatory intent in the exercise of peremptory challenges. (People v. Stanley, supra, 39 Cal.4th at p. 939; People v. Reynoso, supra, 31 Cal.4th at p. 925.) Here, the trial judge accepted the prosecutor’s reasons for excusing the jurors in question and thereby impliedly found that the defense had failed to prove purposeful racial discrimination. Appellant now challenges the validity of that finding.
“When 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 ruling, reviewing it under the substantial evidence standard.” (People v. Jurado (2006) 38 Cal.4th 72, 104-105.) “Since the trial court was in the best position to observe the prospective jurors’ demeanor and the manner in which the prosecutor exercised his peremptory challenges, the implied finding, that the prosecutor’s reasons for excusing [the prospective jurors], including the demeanor-based reason, were sincere and genuine, is entitled to ‘great deference’ on appeal. [Citations.]” (People v. Reynoso, supra, 31 Cal.4th at p. 926; People v. Stanley, supra, 39 Cal.4th at p. 939.)
With this deferential standard of review in mind, we turn to our review of the court’s findings that the prosecutor’s explanations for excusing the jurors in question were sincere and credible, rather than based on purposeful racial discrimination.
As to juror Nos. 505277 and 529561, the prosecutor explained that he felt both had experienced negative incidents with law enforcement, and this was “essentially” a case involving the credibility of police officers. The record shows that both of these jurors explained such incidents in detail. A peremptory challenge based on a negative experience with law enforcement is a proper race-neutral reason. (People v. Turner (1994) 8 Cal.4th 137, 171, overruled on other grounds in People v. Griffin (2004) 33 Cal.4th 536, 555, fn. 5.)
As to juror No. 693506, the prosecutor found her to be “very young and still lives with her parents,” and she lacked “taking significant responsibilities” or “having significant life experience .… I didn’t want her taking responsibility for the verdict in this case.” Although her age is not revealed, juror No. 693506 testified that she was a single mother, attended school, and worked as a volunteer at a learning center. She had previously worked seasonally as a sales clerk at a retail clothing store. A prosecutor’s estimation that a prospective juror seems particularly young or inexperienced is a racially neutral explanation for use of a peremptory challenge. (See People v. Arias (1996) 13 Cal.4th 92, 139; People v. Sims (1993) 5 Cal.4th 405, 429-430.) While voir dire of Ms. 693506 was minimal, the record is not inconsistent with the prosecutor’s stated reasons for challenging her.
As to juror No. 497025, the prosecutor expressed a concern that she might not be able to understand the court proceedings. The juror herself expressed this concern in court.
And as to juror No. 687448, the prosecutor expressed a concern that she was “puzzled and not grasping” the concepts initially discussed by the court and that she had relatives with drug problems. The record shows that juror No. 687448 was asked a number of preliminary questions by the trial court. When asked “Where are you going to get the law?” she replied, “From the judge.” When the trial court asked, “[W]hat if you disagree with the law that I give you? You don’t have to follow it as a juror, do you … [is] that right?” she responded, “Yes.” When asked if jurors were allowed to disagree with the judge, she stated, “I don’t know. I thought the judges are supposed to know anything regarding the law.”
Later, the trial court asked the prospective jurors, by a show of hands, “those that are pro law enforcement.” Since juror No. 687448 did not raise her hand, the trial court asked her if she was “pro crime,” to which she replied “No.” When the court asked “Do you want laws to be enforced?” she replied “Yes,” and the court then said “Then you are pro law enforcement,” to which she replied, “Oh, okay.”
Where a prosecutor’s concern for a juror’s ability to understand is supported by the record, it is a proper basis for challenge. (People v. Turner, supra, 8 Cal.4th at p. 169.) While the record shows a bit of confusion on juror No. 687448’s part, we note that neither the trial court nor defense counsel disputed the prosecutor’s characterization of juror No. 687448 as “puzzled and not grasping,” although defense counsel described the prosecutor’s concern of this juror as touching on no particular issues other than that he didn’t like her facial expressions. In this situation, “we rely on the good judgment of the trial court[] to distinguish bona fide reasons for such peremptories from sham excuses belatedly contrived to avoid admitting acts of group discrimination.” (People v. Wheeler, supra, 22 Cal.3d at p. 282.)
We also note that juror No. 687448 stated that “all” of her brothers had been arrested on drug charges. This alone could serve as a valid race-neutral reason to excuse her. (See People v. Cummings (1993) 4 Cal.4th 1233, 1282 [fact that prospective juror’s relative had been convicted of a crime was a proper consideration justifying peremptory challenge].)
Appellant further claims that a comparative juror analysis indicates that the prosecutor’s explanation as to juror Nos. 687448 and 693506 was a sham. Historically, appellate courts have refrained from engaging in a comparative juror analysis where the trial court did not do so. (People v. Box (2000) 23 Cal.4th 1153, 1190 [questioning validity and reliability of comparative juror analysis on cold appellate record]; People v. Turner, supra, 8 Cal.4th at p. 169 [questioning comparative juror analysis].) Recently, however, the United States Supreme Court utilized a comparative juror analysis in connection with review of a Batson motion. (See, e.g., Miller-El v. Dretke, supra, 545 U.S. at pp. 240-248; Miller-El v. Cockrell (2003) 537 U.S. 322, 343-344.) The California Supreme Court, while acknowledging these new precedents, has taken a cautious approach. As summarized in People v. Avila (2006) 38 Cal.4th 491, 545-546:
“Defendant further contends that the assertedly pretextual nature of the prosecutor’s excusal of Prospective Juror V.J. is demonstrated by a comparison of her voir dire answers with those of two nonchallenged and seated jurors, B.B. and D.W. Defendant did not engage in a comparative juror analysis of these particular jurors in the trial court. [¶] In earlier cases, we have declined to engage in comparative juror analysis for the first time on appeal, stating that such an analysis was unreliable in evaluating the prosecutor’s justifications for excusing minority prospective jurors. (People v. Box, supra, 23 Cal.4th at p. 1190; People v. Ervin (2000) 22 Cal.4th 48, 76; People v. Johnson (1989) 47 Cal.3d 1194, 1220-1224.) Defendant urges us to reconsider this position in light of the United States Supreme Court’s decision in Miller El v. Dretke[, supra, ] 545 U.S. 231 …, in which comparative juror analysis was employed, albeit not on direct appeal. [¶] In Miller El, the United State Supreme Court held that, in the context of a challenge of a Black prospective juror, the defendant had established purposeful discrimination under Batson and was entitled to relief on that ground in federal habeas corpus proceedings. (28 U.S.C. § 2254). (Miller El, supra, 545 U.S. at p. 266.) In so holding, the high court observed: ‘If a prosecutor’s proffered reason for striking a black panelist applies just as well to an otherwise-similar nonblack who is permitted to serve, that is evidence tending to prove purposeful discrimination to be considered at Batson’s third step.’ (Id. at p. 241.)”
After framing the issue, the Supreme Court in People v. Avila declined to reach it. Instead, the approach undertaken by the court was to assume without deciding that comparative juror analysis might be undertaken for the first time on appeal. (People v. Avila, supra, 38 Cal.4th at p. 546; see also People v. Guerra, supra, 37 Cal.4th at p. 1106 [same approach].) That is, the court found that even if such comparative analysis was undertaken, purposeful discrimination was not shown. Similarly, we conclude that even if comparative analysis is permissible in this appeal, it does not tend to establish purposeful discrimination in the exercise of peremptory challenges.
Here, appellant points to the fact that the prosecutor did not challenge jurors Nos. 534210, 532984, and 657866 when they gave similar “wrong” answers to the trial court’s questions during voir dire. And, as argued by appellant, juror Nos. 483835, 657866, 532984, 447954, 686899, 490534, 708998, 673509, and 473277 all stated that they had had relatives with drug problems, but were not excused.
Appellant incorrectly refers to this juror as juror No. 687866.
Appellant incorrectly refers to this juror as juror No. 708778.
We first note that we will not consider for our comparative analysis juror Nos. 532984, 483835, 447954, 490534, and 473277, as they are all designated as being Hispanic. Nor will we consider for our comparative analysis juror Nos. 657866, 686899, and 673509, as they were all excused by the defense. In Miller-El, the comparative analysis was to other panelists who were both not of the same racial minority as that challenged and permitted to serve. (Miller-El v. Dretke, supra, 545 U.S. at p. 241.)
This leaves for our analysis juror Nos. 534210 and 708998, both White females. Appellant contends that, similar to juror No. 687448, juror No. 534210 was not challenged but also gave “wrong” answers to the trial court’s questions, and juror No. 708998 was not challenged but admitted to having a relative with drug problems.
Juror No. 534210 stated that she was a widow, an assistant manager at a discount store, had three adult children, and had lived in the county for 20 years. At one point, in response to a question from the court, juror No. 534210 stated that she would not be able to give a verdict before hearing the evidence, instead of more correctly stating that, were she to give a verdict before the evidence, it would be a “not guilty” verdict.
Juror No. 708998 stated that she was married, had two children, her husband worked for a delivery business, and she had worked at a large grocery store for 18 years. She also stated that she had not had any bad experience with peace officers, and that “there’s a lot of drug use in [my husband’s] family, and I’ve seen what it does to them,” but she did not elaborate further.
Neither of these situations is one in which several jurors gave identical responses to a question, but only those of a particular race were challenged. Comparative juror analysis in this instance does not tend to show improper group bias. The trial court, which was in the best position to evaluate both the jurors themselves and the prosecutor’s credibility and use of peremptory challenges, agreed that the prosecutor’s explanations were legitimate, and nothing in the record before us calls for a different conclusion.
In sum, we conclude that the trial court properly denied appellant’s Batson/Wheeler motion.
DISPOSITION
The judgment is affirmed.
I CONCUR: CORNELL, Acting P.J.,
GOMES, J., Dissenting.
In People v. Johnson (2004) 119 Cal.App.4th 976 (Johnson), a prosecution for murder, conspiracy to murder, and accessory to murder, the trial court’s tinkering with the statutory definition of reasonable doubt during jury selection created structural error by equating proof beyond a reasonable doubt to everyday decisionmaking in a juror’s life, which lowered the prosecution’s burden of proof below the due process requirement of proof beyond a reasonable doubt. (Id. at pp. 985-986.)
Years later, in the methamphetamine possession case before us, the same trial court committed the same error. The majority acknowledges that the trial court asked impermissible questions but seeks to distinguish Johnson on the ground that the trial court “did not dwell” on the answers of the prospective jurors to open-ended questions and did not demand or provide examples of everyday decisionmaking. (Maj. opn. ante, at p. 7.) At best, those are distinctions without a difference. At worst, the trial court’s tinkering with the statutory definition of reasonable doubt here was even more flagrant than in Johnson. The open-ended questions the trial court posed – “How many decisions have you made in your life where there was absolutely no doubt in your mind?” and “Can you think of anything you were beyond all possible doubt of?” – required each prospective juror to correlate everyday decisionmaking in his or her life to proof beyond a reasonable doubt. By leaving the questions open-ended, the trial court set each prospective juror free to invoke his or her own idiosyncratic and subjective notion of proof beyond a reasonable doubt. Here, as in Johnson, “‘the essential connection to a “beyond a reasonable doubt” factual finding cannot be made where the instructional error consists of a misdescription of the burden of proof, which vitiates all the jury’s findings,’” constituting structural error that compels reversal per se. (Johnson, supra, 119 Cal.App.4th at p. 986, quoting Sullivan v. Louisiana (1993) 508 U.S. 275, 281-282.)
In People v. Brannon (1873) 47 Cal. 96 (Brannon), a prosecution for murder, the trial court gave an instruction authorizing a guilty verdict if the evidence were to satisfy the jury of the defendant’s guilt to a “certainty as would influence the minds of the jury in the important affairs of life.” (Id. at p. 97.) Noting that the “judgment of a reasonable [person] in the ordinary affairs of life, however important, is influenced and controlled by the preponderance of evidence,” the California Supreme Court reversed the judgment and ordered a new trial on the ground that allowing the jury to so decide a criminal case impermissibly lowers the prosecution’s burden of proof. (Ibid.) On a like record here,I would reverse the judgment and order a new trial.