Opinion
G025635
Filed August 31, 2001 Certified for Publication November 14, 2001
Deleted on direction of Supreme Court by order dated November 14, 2001.
Appeal from a judgment of the Superior Court of Orange County, No. 99CF0391, Charles Margines, Judge. Reversed.
A.M. Weisman, under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Janelle M. Boustany and Bradley A. Weinreb, Deputy Attorneys General, for Plaintiff and Respondent.
After a jury trial, defendant was convicted of one count of first degree burglary (Pen. Code, §§ 459, 460, subd. (a)). Although defendant raises several issues on appeal, we find the prosecution discriminatorily used one of its peremptory challenges and reverse on that ground.
FACTS
Qui Bahn returned home one evening to find her family's home ransacked. The window in her daughter's room had been broken and left open. A number of items, valued at approximately $5,000, were missing. Investigation of the crime scene revealed defendant Daniel Phillip Gomez's fingerprints on a VCR.
During voir dire, the prosecution used three peremptory challenges to eliminate Raymond Ornelas, Jason Saldana, and Anabell Ramirez from the jury panel, all of whom appeared to be of Hispanic descent. Defense counsel made a Wheeler motion ( People v. Wheeler (1978) 22 Cal.3d 258), alleging the prosecution had improperly used its peremptory challenges to exclude Hispanics from the jury panel.
The prosecutor purported to explain each of the exclusions. Ornelas was a very young man who might not have "given the fingerprint evidence the weight it would have deserved." The prosecutor expressed concern of Saldana, a cable technician, who was required to be in other people's homes, "might put himself in the defendant's shoes" and be difficult to persuade. Concerning Ramirez, the prosecutor stated, "her husband is a painter. He's a little bit too liberal for me so I kicked her off." Apparently confused by this response, the court stated, "Wait. I'm sorry. The painter? Who is too liberal?" The prosecutor responded, "Her husband is a painter. I just got off a jury where her husband was a philosopher and anyone close to painting, philosophy, acting, I don't like to keep. I don't care. I'll kick them off." The court then stated, "I'm sorry. Did she say he was a house painter or a painter of works of art?" The prosecutor replied, "She said, painter. I took it as works of art." Defense counsel stated, "I took it as house painter." The prosecutor responded, "We didn't go into it." No further inquiry was conducted.
The court acknowledged a pattern of group bias in the exercise of the three peremptory challenges and determined a prima facie case had been made. But it ultimately denied defendant's motion. The court agreed Ornelas appeared "quite young." With regard to Saldana, the court commented that "[it] could see why the prosecutor feels the way he does. . . ." As to Ramirez, the court stated, "Whether or not Ms. Ramirez [ sic] husband paints, you know, be it seascapes or houses, I don't know. I guess that will just remain a mystery, but it's not unreasonable for the people to infer that he was a painter of art and that somehow that brand [ sic] him as a liberal."
When a fourth Hispanic prospective juror, Luis Cesena, was questioned about any bias he may have against either party, he voiced some trepidation and further inquiry was conducted in the judge's chambers. Cesena complained about the prosecutor's pattern of challenges against Hispanic jurors. In response, the court proposed to excuse Cesena and reiterated that it stood by its denial of defense counsel's Wheeler motion. The record fails to reflect the final racial make up of the selected jury, and whether any Hispanic surnamed, prospective jurors remained on the jury.
DISCUSSION
On appeal, defendant contends the trial court erred in denying his Wheeler motion. Specifically, he contends the prosecution's proffered explanations were unsupported by the record, and the court failed to seriously evaluate the genuineness of those explanations and simply accepted the statements on their face. We agree.
Under article I, section 16 of the California Constitution, a defendant's right to trial by a representative jury is violated by the use of peremptory challenges to exclude jurors solely on the ground of group bias. ( People v. Wheeler, supra, 22 Cal.3d at pp. 276-277.) Batson v. Kentucky (1986) 476 U.S. 79 affords similar protection to an accused under the federal Constitution's equal protection clause.
"[O]nce the opponent of a peremptory challenge has made out a prima facie case of racial discrimination (step one), the burden of production shifts to the proponent of the strike to come forward with a race-neutral explanation (step two). If a race-neutral explanation is tendered, the trial court must then decide (step three) whether the opponent of the strike has proved purposeful racial discrimination. [Citations.]" ( Purkett v. Elem (1995) 514 U.S. 765, 767; see also People v. Silva (2001) 25 Cal.4th 345, 384.)
"`The trial court has a duty to determine the credibility of the prosecutor's proffered explanations' [citation], and it should be suspicious when presented with reasons that are unsupported or otherwise implausible [citations]. . . ." ( People v. Silva, supra, 25 Cal.4th at p. 385.) Though obviously puzzled by the prosecutor's explanation, the court simply took it at face value. The court remarked that "it's not unreasonable for the people to infer that [Mr. Ramirez] was a painter of art and that somehow that brand [ sic] him as a liberal." But the prosecutor's reasoning is not only illogical, the factual premise for it is unsubstantiated in the record. The court failed to question the factual bases for the prosecutor's explanation: whether the prosecutor was actually familiar with Ms. Ramirez's husband; whether Mr. Ramirez painted canvases or homes; and whether Ms. Ramirez shared her husband's ideology. The absence of factual support for the prosecution's explanation, combined with the prosecutor's illogical assumptions, reflect that the court failed to adequately determine the credibility of the proffered justification. Further, Cesena's objective and lay observation that jurors of Hispanic descent and with Hispanic surnames were being unfairly eliminated lends itself to support a determination that the prosecutor's conduct was highly questionable.
Ramirez's voir dire disclosed little. When questioned by the court, she stated, "My name is Ms. Ramirez. I work as a shipping clerk. I'm married. My husband is a painter. I have four children [ sic] eleven, eight, five, and six months. And this is my first time as a juror." No further information was elicited from her.
Nothing in this voir dire supports the prosecutor's proffered justification. It was unreasonable for the prosecutor to assume her husband is involved in works of art, rather than the applying of paint to buildings and such. Nothing in the record supports this inference; the prosecutor failed to inquire what Mr. Ramirez painted. Instead, responding to defense counsel's statement that he understood Mr. Ramirez to be a house painter, the prosecutor admitted that "We didn't go into it." His explanation amounted to pure speculation. The prosecutor's logic is almost surreal: A "painter" must be assumed to be an artist, artists must be assumed to be "liberal," and liberals must be assumed to be antagonistic to the prosecution. Furthermore, one who is married to a liberal spouse must be assumed to share his or her ideology. Take that, Mary Matalin and James Carville!
"Although we generally `accord great deference to the trial court's ruling that a particular reason is genuine,' we do so only when the trial court has made a sincere and reasoned attempt to evaluate each stated reason as applied to each challenged juror. [Citations.] When the prosecutor's stated reasons are both inherently plausible and supported by the record, the trial court need not question the prosecutor or make detailed findings. But when the prosecutor's stated reasons are either unsupported by the record, inherently implausible, or both, more is required of the trial court than a global finding that the reasons appear sufficient." ( People v. Silva, supra, 25 Cal.4th at pp. 385-386.) Because the prosecutor's explanation for exercising a peremptory challenge against Ramirez was not supported by the record, we conclude that defendant's right to a fair trial was violated under both the state and federal Constitutions. Because the improper exclusion of a single juror violates a defendant's right to a representative jury ( People v. Fuentes (1991) 54 Cal.3d 707, 716, fn. 4), we do not examine in this opinion the validity of the other peremptory challenges or the other issues raised in the appeal.
DISPOSITION
The judgment is reversed.
I Concur:
SILLS, P. J.
O'LEARY, J., Dissents.
I wholly agree with the majority opinion, but write separately because the reasons for reversal are even more compelling than the majority opinion indicates. A clearer pattern of racial bias in the use of peremptory challenges is hard to imagine.
The policy against racially motivated peremptory challenges to prospective jurors is so strong that it even extends to civil cases, because the court proceedings involved constitute state action. (See generally Edmonson v. Leesville Concrete Company (1991) 500 U.S. 614.) The policy can only be stronger where where the state itself is not only a litigant, but engages in such tactics.
Anabell Ramirez, the painter's wife, was only one of four Hispanic surnamed prospective jurors that the prosecutor managed to eliminate from the jury. The lead opinion mentions the three who were the object of peremptory challenges, and shows in detail why one of those peremptories was undeniably a sham. The other two were obviously shams as well. And there was also a Mr. Cesena, a fourth Hispanic surnamed prospective juror as well. He noticed the pattern in the prosecutor's use of peremptories and asked to speak to the judge in chambers. He told the judge that the prosecutor appeared to be biased because of the first three exclusions. For his pains, however, the juror was referred to by the prosecutor (albeit outside his presence) as a "racist," and the court, over the defense's objection, removed him for cause!
The majority opinion concentrates on the sheer, embarrassing ludicrousness of the prosecutor's ostensible reason for excluding Anabell Ramirez. But the same implausibility dogs the proffered excuses for using peremptory challenges on the other two Hispanic surnamed jurors as well, to say nothing of the challenge for "cause" to Mr. Cesena.
The excuse used for juror Raymond Ornelas was that he was too young, and therefore would not understand the import of fingerprint evidence. Really? Every sentient six-year old who has ever watched a crime show knows the importance of fingerprint evidence. And anyone who is smart enough to get a law degree and be hired by the Orange County District Attorney's office knows that appreciation of fingerprint evidence is not a function of age.
In death penalty cases a prospective juror's immaturity has been held to justify excusal. (See People v. Sims (1993) 5 Cal.4th 405, 431; see also People v. Ervin (2000) 22 Cal.4th 48, 76 [passing reference to two young prospective jurors, one of whom also seemed "too sympathetic to defendant" and the other who appeared "too eager to remain on the juror despite both holding a job and attending classes"].)
The other exclusion was against Jason Saldana, a cable technician. The glimmer of a justification here is that because Mr. Saldana might occasionally leave his own fingerprints on his customers' VCR's, he would be too likely to sympathize with a defendant who left his fingerprints on a VCR. If Mr. Saldana had been the only Hispanic surnamed juror to be excused, I might be inclined to give the prosecutor the benefit of the doubt as to him. But in light of all that silliness about liberal painters, the natural inference is that this excuse was also a sham. No rational person would ever suppose that a hardworking contractor or technician whose job it is to do work in people's homes would ever identify with a burglar. He is the sort of juror who would most be inclined to be tough on the defendant if he were being considered without regard to his ethnicity.
So we do not have, in this case, just one instance of a prosecutor giving merely one truly loony excuse for excusing a Hispanic surnamed juror. We have one truly ludicrous excuse, and two so flimsy that, in context with the first, there is a clear basis to conclude that the prosecutor was using his peremptories in an ethnically biased manner. As Paul Simon once sang, "who do you think you're fooling?"
Our dissenting colleague tries to justify the excusal based on the idea that this prosecutor might indeed be so dense that he "sincerely" believes that a woman married to a painter would be a liberal because all painters are artists and all artists are liberal and all liberals are antiprosecution and all people who are married to liberals adopt the views of their spouses. The prosecutor's justification for excusing Ms. Ramirez is like something out of Monty Python. Suffice to say that I have a higher regard for the prosecutor's intelligence than does the dissent.
The idea that, because a husband holds certain political views, a wife must be presumed to hold them too, was considered ridiculous by the late 1830's. The origin of the quotation, "the law is an ass" was the reaction of Mr. Bumble in Dickens' Oliver Twist to the proposition that the law presumed a wife to act at the direction of her husband. "If the law supposes that, said Mr. Bumble . . . the law is an ass. . . ." The notion is even more ridiculous today.
"[W]e rely on the good judgment of the trial courts to distinguish bona fide reasons for such peremptories from sham excuses belatedly contrived to avoid admitting acts of group discrimination." ( People v. Wheeler (1978) 22 Cal.3d 258, 282.) A series of excuses that were more obviously shams would be hard to imagine, even if one set about to make them up. Reversal under Wheeler is compelled.
Finally, this case illustrate an important problem in the law of peremptory challenges which I believe merits the attention of our Supreme Court: the use of rationales drawn from political science as justifications for excusing jurors. The split on this panel suggests that the law in this area is not yet sufficiently defined, and, as Justice Wiener once said about another "confusing and conflicting" area of the law, "it would be nice if our Supreme Court could clarify" it. (See Estate of Nielson (1980) 105 Cal.App.3d 796, 809 (conc. opn. of Wiener, J.).) If some farfetched link to ideology is enough to justify a peremptory challenge, then we might as well bury Wheeler and its progeny. As this case illustrates, inventive prosecutors will always be able to link some otherwise "group neutral" characteristic to "liberalism." Today it is women who are married to painters. Tomorrow it's anybody who ever thought of dabbling in art.
I would affirm. I agree in general with my colleagues' sentiments about the quality of the prosecutor's excuses. Had I been the trial judge, I likely would have found them not to be credible. But it is not for me or my colleagues, none of whom were present in the trial court, to substitute our judgment of credibility for the trial court's.
The majority opinion relies almost exclusively on People v. Silva (2001) 25 Cal.4th 345 to find — as a matter of fact and law — "the prosecution discriminatorily used one of its peremptory challenges. . . ." (Maj. opn. at p. 2.) But Silva is distinguishable and does not control the outcome in our case.
In Silva, the Supreme Court reversed a death sentence because the prosecutor's reasons for exercising the peremptory challenge in question were at odds with the record. The prosecutor claimed he excused the juror because he was an extremely aggressive person and would be reluctant to return a death verdict. Absolutely nothing in the record supported that claim; in fact, it showed the contrary. ( People v. Silva, supra, 25 Cal.4th at pp. 376-377, 385.)
The Supreme Court noted the trial court is generally entitled to great deference in ruling on such challenges. The court found it was inappropriate to accord such deference, however, where the prosecutor's explanation is utterly at odds with the record, the trial court fails to probe the prosecutor about the discrepancy, and the trial court does not make findings regarding its ruling. Because the trial court failed in those obligations and the record was at odds with the prosecutor's reasons, the Supreme Court reversed. ( People v. Silva, supra, 25 Cal.4th at pp. 385-386.)
Here, the prosecutor's reason did not conflict with the record. Nothing contradicted the prosecutor's claim he did not want the wife of an artist on the jury because she might be too liberal. Indeed, when the court questioned the prosecutor further, the prosecutor explained he had done the same thing with the wife of a philosopher.
The court expressly found it was not unreasonable for the prosecutor to believe the juror might be too liberal. This finding implies the court believed the prosecutor's reason was sincere. (See People v. Jackson (1996) 13 Cal.4th 1164, 1197-1198 ["Although the trial court's statement was brief, it apparently independently assessed the prosecutor's reasons for peremptorily challenging the jurors"].) Nothing about the prosecutor's explanations for excusing other Hispanic jurors or the trial court's actions brings the case under the purview of Silva.
These circumstances do not justify forsaking the usual deference we accord to the trial courts in this type of proceeding. Although the Silva court stated the trial court "should be suspicious when presented with reasons that are unsupported or otherwise implausible," the court did not suggest mere implausibility mandates a finding of discrimination. ( People v. Silva, supra, 25 Cal.4th at p. 385.)
Indeed, substantial Supreme Court authority compels the conclusion implausibility is pertinent only as it informs on the prosecutor's sincerity when disclaiming discriminatory intent, and the trial court normally should be afforded the same deference to which it is entitled regarding credibility calls in general. (See, e.g., People v. Silva, supra, 25 Cal.4th at p. 385 ["`[t]he trial court has a duty to determine the credibility of the prosecutor's proffered explanations'"]; People v. Williams (1997) 16 Cal.4th 153, 189 [genuine mistaken reason is a race-neutral reason]; People v. Alvarez (1996) 14 Cal.4th 155, 196 [ Wheeler inquiry "depends on the answer to a purely factual question, viz., whether the prosecutor acted with the prohibited intent — which in turn typically depends on the answer to another purely factual question, viz., whether the prosecutor's customary denial of such intent is true"; substantial evidence standard applied]; People v. Wheeler (1978) 22 Cal.3d 258, 282 ["[W]e rely on the good judgment of the trial courts to distinguish bona fide reasons for such peremptories from sham excuses belatedly contrived to avoid admitting acts of group discrimination"].)
Because we are reviewing a credibility call, the trial court's finding that the prosecutor was sincere must be upheld unless the prosecutor's justification was inherently incredible — i.e., under no hypothesis could it be sincere. "Testimony may be rejected only when it is inherently improbable or incredible, i.e., `"unbelievable per se,"' physically impossible or `"wholly unacceptable to reasonable minds."' [Citations.]" ( Oldham v. Kizer (1991) 235 Cal.App.3d 1046, 1065, italics omitted.)
The prosecutor's explanation for excluding juror Ramirez was not inherently incredible. It was at least plausible a prosecutor would excuse a juror for being too liberal, and that the prosecutor would conclude the immediate family of those engaged in what he believed to be liberal endeavors would be, themselves, too liberal.
My colleagues and I agree the prosecutor's rationale was foolish, sexist, and probably based on a fallacious assumption about what sort of painter the husband was. But none of those facts justifies a reversal on the ground of a discriminatory peremptory challenge. Discriminatory intent, not foolishness is the test. (See People v. Williams, supra, 16 Cal.4th at p. 189.) Although I may well have found such intent, the trial court was entitled to find it was absent. I would affirm.