Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County. No. F06901290-7, Hilary Chittick, Judge.
Susan D. Shors, 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, J. Robert Jibson and Peter H. Smith, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
HILL, J.
A jury convicted defendant Frank Jasper Montgomery Sample of committing a lewd act upon a child under the age of 14 years (Pen. Code, § 288, subd. (a)) and the trial court found numerous sentence enhancements to be true. Defendant was sentenced to prison for a total indeterminate term of 75 years to life, plus a total determinate term of 21 years.
Defendant’s sole contention on appeal is that the trial court erred during jury selection by denying his motion to quash the panel under People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler) and Batson v. Kentucky (1986) 476 U.S. 79 (Batson) (Wheeler/Batson motion). When defense counsel raised the motion below, he claimed the prosecutor had improperly excused one African-American and two Hispanic prospective jurors. On appeal, defendant has limited his argument to the excusal of a single African-American prospective juror, Ms. N. Defendant contends that the trial court improperly found that the defense failed to make a prima facie case of discrimination after inviting the prosecutor to explain her reasons for dismissing the prospective jurors in question and that the court should have granted the motion because the prosecutor failed to offer a genuine, race-neutral reason for excusing, Ms. N. We will conclude that the trial court did not err by finding the defense failed to make a prima facie case and will affirm the judgment.
The facts concerning the underlying crime are irrelevant to this appeal.
I. Wheeler/Batson Motion
A. Background
On the second day of jury selection, defense counsel raised a Wheeler/Batson motion, claiming the prosecutor was improperly excusing jurors. Defense counsel noted that the previous day the prosecutor had excused, Mr. D., an African-American prospective juror. Defense counsel appeared to acknowledge the prosecutor had some ground, other than race, for excusing Mr. D. because the prospective juror had said he had an upcoming court hearing. However, defense counsel indicated he felt compelled to raise the Wheeler/Batson motion after the prosecutor dismissed a second African-American juror, Ms. N., whose background contained only innocuous information about her education (business degree from Heald College), occupation (production processor for Valley Yellow Pages), and family status (married with two children). Defense counsel also noted that the prosecutor’s last two peremptory challenges had been exercised against two Hispanic males, and asserted: “I believe it is incumbent upon the district attorney to at least make a prima facie showing that she is not improperly exercising peremptory challenges.”
In response, the trial court stated it would “be glad to hear from the People.” The prosecutor then proceeded to explain her reasons for excusing the two Hispanic prospective jurors, Mr. R. and Mr. M.:
“Mr. [R.] stated he basically works as a crisis intervention worker, 5150s, and he does work with children. And the reason I excused him is because I do have concern there is a letter, it hasn’t been determined yet whether that letter is coming into evidence, because of his background, that could potentially be problematic, so that’s the reason I excused Mr. [R.]”
“Mr. [M.], I believe it is – or [M.], I’m sorry. He does not have any children, he doesn’t live with any children, and that’s the reason I excused him.”
The prosecutor then addressed the excusal of Ms. N., as follows:
“And Ms. [N.], quite frankly, I think she would make a great juror, but she does – based on my view of her expression on her face, she doesn’t seem very happy about being here and I was concerned that maybe she might either hold it against myself or defense counsel if she’s kept over for several weeks as a juror.”
A little later, the prosecutor noted that she had confirmed through the computer system that Mr. D., the African-American prospective juror she excused the previous day, had “a court date on the 22nd on a pending felony 273.5, and that’s the reason he was excused.” She further added: “And my excusing of any of the jurors has nothing to do with their racial background.”
Defense counsel responded:
“Having watched Ms. [N.] and Ms. Prospective Juror Number ****3, as well as Ms. [B.], I saw actually no expressions on Ms. [N.]’s face that was inconsistent with anyone else’s, and no one wants or is pleased to be here for a period of time.
“As to Mr. [M.], so the excuse was he has no children, but Ms. [N.] has children.
“As to Mr. [R.], the fact that he works for the county or otherwise in a crisis situation under 5150, I believe is insufficient. She went into that deeply, he did not express any bias or otherwise in regards to that.
“And as to the presupposing of the evidence, it would apparently appear to be simply an improper reason.”
The trial court denied the Wheeler/Batson motion, finding the defense had failed to make a prima facie case of discrimination. In reaching this ruling, the court reasoned:
“THE COURT: All right. It does not seem to the Court, having considered all the information that has been provided to the Court, it does not appear to the Court that [defendant] is either b[l]ack or Hispanic, and, therefore, the challenged jurors are not of the same cognizable group.
“It does not appear to the Court that race or gender are an issue in the case particularly. It does not appear to the Court that all of the members of either the black or Hispanic groups have been challenged, because there is at least one black member still remaining on the jury.
“[THE PROSECUTOR]: There are two, your Honor.
“THE COURT: Ms. [B.] and Ms. Prospective Juror Number ****12, Panel Two, In Seat Number Two, so there are two still remaining on the jury. And there are a number of Hispanics remaining on the jury. There have been quite a number of Hispanic potential jurors. Both sides have been excusing people of a variety of races, and the Court doesn’t find that a disproportionate number of challenges are being used against any group member.
“It seems to the Court that the questioning has been essentially equally thorough and straightforward by both counsel. There are – there is information in the background, although not so much of Ms. [N.] who was challenged, but certainly with reference to the remaining jurors. There are some reasons that are not related to their racial or ethnic group that relate to the reasons why they might be challenged. And, therefore, the Court does not find that under the totality of circumstances a prima facie showing has been made, and for that reason the Court will not find the prima facie case to have been made and deny the challenge at this point.”
B. Analysis
The use of peremptory challenges to excuse prospective jurors based on race violates the federal and state Constitutions. (Batson v. Kentucky, supra, 476 U.S. at p. 97; People v. Wheeler, supra, 22 Cal.3d at pp. 276-277.) “Such a use of peremptories by the prosecution ‘violates the right of a criminal defendant to trial by a jury drawn from a representative cross-section of the community under article I, section 16 of the California Constitution. [Citations.] Such a practice also violates the defendant’s right to equal protection under the Fourteenth Amendment to the United States Constitution.’ [Citation.]” (People v. Bonilla (2007) 41 Cal.4th 313, 341, last bracketed insertion added.) There is a rebuttable presumption that a peremptory challenge is being exercised properly, and the opposing party bears the burden to demonstrate impermissible discrimination. (Purkett v. Elem (1995) 514 U.S. 765, 768; People v. Bonilla, supra, at p. 341.)
The defendant must first “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, ‘[i]f a race-neutral explanation is tendered, the trial court must then decide ... whether the opponent of the strike has proved purposeful ... discrimination.’ [Citation.]” (Johnson v. California (2005) 545 U.S. 162, 168, fn. omitted.) Moreover, “[Johnson] explain[ed] 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.’ [Citation.] The defendant having shown membership in a cognizable class, and keeping in mind ‘“that peremptory challenges constitute a jury selection practice that permits ‘those to discriminate who are of a mind to discriminate,’”’ the defendant ‘“must show that these facts and any other relevant circumstances raise an inference that the prosecutor used that practice to exclude the veniremen from the petit jury on account of their race.”’ [Citation.]” (People v. Cornwell (2005) 37 Cal.4th 50, 67.)
In Johnson v. California, supra, 545 U.S. 162, the United States Supreme Court reversed People v. Johnson (2003) 30 Cal.4th 1302, and concluded that California courts had been applying too rigorous a standard in deciding whether defendants had made out a prima facie case of discrimination. (See Johnson v. California, supra, 545 U.S. at pp. 166-168 [holding the requirement that a defendant show a “‘strong likelihood,’” rather than a “‘reasonable inference,’” of discrimination was inconsistent with Batson and the federal Constitution].)
“The three-step Batson analysis, however, is not so mechanistic that the trial court must proceed through each discrete step in ritual fashion. Thus, the trial court may invite the prosecutor to state race-neutral reasons for the challenged strikes before announcing its finding on whether a defendant met the first step of the Batson test by making out a prima facie case of discrimination.” (People v. Adanandus (2007) 157 Cal.App.4th 496, 500-501.) Indeed, “it is the better practice for the trial court to have the prosecution put on the record its race-neutral explanation for any contested peremptory challenge, even when the trial court may ultimately conclude no prima facie case has been made out. This may assist the trial court in evaluating the challenge and will certainly assist reviewing courts in fairly assessing whether any constitutional violation has been established.” (People v. Bonilla, supra, 41 Cal.4th at p. 343, fn. 13; see also People v. Mayfield (1997) 14 Cal.4th 668, 723-724 [even where no prima facie case found, court may properly consider reasons actually given by the prosecutor].)
“[W]here the ‘“‘trial court denies a Wheeler motion without finding a prima facie case of group bias the reviewing court considers the entire record of voir dire. [Citations.] As with other findings of fact, we examine the record for evidence to support the trial court’s ruling. Because Wheeler motions call upon trial judges’ personal observations, we view their rulings with “considerable deference” on appeal. [Citations.] If the record “suggests grounds upon which the prosecutor might reasonably have challenged” the jurors in question, we affirm.’”’ [Citation.]” (People v. Adanandus, supra, 157 Cal.App.4th at p. 501, last bracketed insertion added, citing People v. Crittenden (1994) 9 Cal.4th 83, 116-117; People v. Bonilla, supra, 41 Cal.4th at p. 341 [“we review the trial court’s denial of a Wheeler/Batson motion deferentially, considering only whether substantial evidence supports its conclusions”].)
Here, the trial court expressly found no prima facie case of discrimination had been established, and the fact the court “did not immediately rule on whether a prima facie showing had been made” but allowed the prosecutor to state reasons “did not moot the question of whether defendant had established a prima facie showing. [Citations.]” (People v. Boyette (2002) 29 Cal.4th 381, 422.) Thus, this case is distinguishable from People v. Lewis (2008) 43 Cal.4th 415 (Lewis), upon which defendant relied at oral argument. In Lewis, “the trial court solicited an explanation of reasons from the prosecutor without stating whether or not it had found a prima facie case.” (Lewis, supra, 43 Cal.4th at p. 470.) The Supreme Court specifically contrasted Lewis with a case similar to this one:
“Here, ‘[b]y requesting the prosecutor to explain his reasons for these challenges, the trial court impliedly found that defendant had established a prima facie case.’ [Citations.] Contrary to the Attorney General’s contention, this is not a case like People v. Bittaker (1989) 48 Cal.3d 1046, where we concluded that the trial court had not impliedly found a prima facie case. In Bittaker, after soliciting the prosecutor’s response, the trial court expressly found that a prima facie case had not been established. (Id. at pp. 1091-1092.) Here, by contrast, ‘nothing in the record suggests’ that the trial court had not found a prima facie case. [Citation.]” (Lewis, supra, 43 Cal.4th at pp. 470-471, italics added.)
Contrary to defendant’s suggestion at oral argument, the Supreme Court did not go on to announce a new holding that whenever a trial court listens to a prosecutor’s reasons for excusing prospective jurors, the question of whether a prima facie case exists automatically becomes moot. Defendant relies on the following language from Lewis:
“Moreover, by proferring his reasons for excusing R.W., the prosecutor rendered moot the question whether a prima face case existed. (See Hernandez v. New York (1991) 500 U.S. 352, 359 [‘Once a prosecutor has offered a race-neutral explanation for the peremptory challenges and the trial court has ruled on the ultimate question of intentional discrimination, the preliminary issue of whether the defendant had made a prima facie showing becomes moot.’].)” (Lewis, supra, 43 Cal.4th at p. 471.)
Lewis merely reiterated existing law. Here, the preliminary question of the existence of a prima face case did not become moot under the authority cited by Lewis because the trial court did not rule on the merits of the Wheeler/Batson motion (i.e., the ultimate question of intentional discrimination) but instead found no prima facie showing of discrimination had been made by the defense in the first instance, applying the totality of the circumstances test of the first step of the Wheeler/Batson procedure described above.
Reviewing the trial court’s ruling deferentially, as we must, we conclude there is substantial evidence supporting the trial court’s denial of the Wheeler/Batson motion based on a finding that no prima facie case of discrimination had been made; defendant did not establish, based on all the circumstances, that there was a reasonable inference the juror (Ms. N.) was excused because of her race. First, the circumstance that the prosecutor challenged Ms. N., one prospective juror who was African-American, did not in itself support an inference of bias. (People v. Cornwell, supra, 37 Cal.4th at pp. 69-70 [“circumstance that the prosecutor challenged one out of two African-American prospective jurors does not support an inference of bias”]; People v. Bonilla, supra, 41 Cal.4th at pp. 342-343 [exclusion of a single prospective juror may be the product of improper group bias, but, practically, exclusion of one or two jurors rarely suggests a pattern of impermissible exclusion].) Second, the circumstance that Ms. N. arguably seemed to possess characteristics making her favorable to the prosecution also did not necessarily raise an inference of bias. (See People v. Turner (1994) 8 Cal.4th 137, 165 [prosecutor may act on a hunch or apparently arbitrarily, as long as the peremptory challenge is not based on group bias], disapproved on another point in People v. Griffin (2004) 33 Cal.4th 536, 555, fn. 5 ]; People v. Cornwell, supra, 37 Cal.4th at p. 69 [circumstance that juror was not subject to exclusion for cause certainly did not support inference that the exercise of a peremptory challenge against her was motivated by group bias].)
In Bonilla, the court stated: “It is true the prosecution used peremptories to challenge both African-Americans in the pool, but ‘the small absolute size of this sample makes drawing an inference of discrimination from this fact alone impossible. “[E]ven the exclusion of a single prospective juror may be the product of an improper group bias. As a practical matter, however, the challenge of one or two jurors can rarely suggest a pattern of impermissible exclusion.”’” (People v. Bonilla, supra, 41 Cal.4th at pp. 342-343, fn. omitted.) “‘[T]he ultimate issue to be addressed on a Wheeler-Batson motion “is not whether there is a pattern of systematic exclusion; rather, the issue is whether a particular prospective juror has been challenged because of group bias.” [Citation.] But in drawing an inference of discrimination from the fact one party has excused “most or all” members of a cognizable group’ – as Bonilla asks the court to do here – ‘a court finding a prima facie case is necessarily relying on an apparent pattern in the party’s challenges.’ [Citation.] Such a pattern will be difficult to discern when the number of challenges is extremely small.” (Id. at p. 343, fn. 12, last bracketed insertion added.)
There was also record support for the other circumstances the trial court considered in determining no prima facie case had been made: the prosecutor had not used a disproportionate number of strikes against members of a particular group, a number of African-American and Hispanic prospective jurors remained on the panel, the prosecutor’s questioning of all the jurors was similar, and defendant was not a member of any of the challenged groups. Our Supreme Court has found all these circumstances relevant to a trial court’s determination as to the existence of a prima facie case of discrimination:
“Though proof of a prima facie case may be made from any information in the record available to the trial court, we have mentioned ‘certain types of evidence that will be relevant for this purpose. Thus the party may show that his opponent has struck most or all of the members of the identified group from the venire, or has used a disproportionate number of his peremptories against the group. He may also demonstrate that the jurors in question share only this one characteristic – their membership in the group – and that in all other respects they are as heterogeneous as the community as a whole. Next, the showing may be supplemented when appropriate by such circumstances as the failure of his opponent to engage these same jurors in more than desultory voir dire, or indeed to ask them any questions at all. Lastly, … the defendant need not be a member of the excluded group in order to complain of a violation of the representative cross-section rule; yet if he is, and especially if in addition his alleged victim is a member of the group to which the majority of the remaining jurors belong, these facts may also be called to the court’s attention.’ [Citations.]” (People v. Bell (2007) 40 Cal.4th 582, 597, italics added.)
It is clear under all the forgoing authorities that the trial court considered appropriate factors in finding no prima face case had been made and did not contravene the proper procedure in ruling on defendant’s motion. We therefore reject defendant’s contention that the trial court erred by inviting the prosecutor to comment on defendant’s motion before ruling on whether a prima facie case had been made.
We also find defendant’s other contentions unpersuasive. First, although he disavowed making the claim during oral argument, in his briefing on appeal, defendant claimed that the trial court’s comments indicated that the court implicitly found Ms. N. had been dismissed because of her race but nevertheless improperly denied the Wheeler/Batson motion. Thus, defendant asserts in his opening brief: “The court seemed to think that racial discrimination against one juror was not enough to mandate quashing the jury and that other circumstances would have to be present.”
We find defendant’s assertions in this regard without merit. The trial court here did not find, either expressly or implicitly, that Ms. N. was excused because of her race or that no race-neutral reasons existed for her excusal. The trial court simply noted that there was “not so much” information in Ms. N.’s background compared to the other challenged jurors for why the prosecutor might have challenged her. Moreover, the trial court expressly found no prima facie case of discrimination, which is inconsistent with defendant’s suggestion that the court implicitly found that Ms. N. was dismissed for a discriminatory purpose. We find no indication in the record that the trial court applied the wrong standard or considered improper factors in ruling on defendant’s Wheeler/Batson motion.
Defendant also appears to argue that because Ms. N.’s responses to questions were consistent with someone willing and able to serve as a juror, the prosecutor’s reason for excusing the prospective juror was pretextual and thus supported an inference of racial discrimination. However, Ms. N.’s demeanor is not a matter of record and we therefore, have no basis in the record for concluding that the prosecutor was being disingenuous when she stated she excused Ms. N. because the prospective juror’s facial expression indicated that she was unhappy to be there. Thus, this case is distinguishable from Snyder v. Louisiana (2008) 552 U.S. ___ [128 S.Ct. 1203, 170 L.Ed.2d 175] (Snyder), wherein the United States Supreme Court described the reasons given by the prosecutor for excusing a prospective juror as “unconvincing,” “highly speculative,” “suspicious,” “implausib[le]” and “pretextual,” which created an inference of discriminatory intent. (Id. at pp. __ [128 S.Ct. at pp. 1208-1212].) Unlike Snyder, there is no basis in the record here for a finding the prosecutor’s reasons were pretextual. In any event, the trial court here found the defense failed to establish a prima facie case of discrimination. For the reasons discussed above, we agree with the trial court’s conclusion and therefore conclude the court properly denied defendant’s Wheeler/Batson motion.
DISPOSITION
The judgment is affirmed.
WE CONCUR: CORNELL, Acting P.J., KANE, J.