Opinion
B224397
02-08-2012
THE PEOPLE, Plaintiff and Respondent, v. LUIS MARTINEZ GONZALES et al., Defendants and Appellants.
Elizabeth Piliavin-Godwin, under appointment by the Court of Appeal, for Defendant and Appellant Luis Martinez Gonzales. Linda Acaldo, under appointment by the Court of Appeal, for Defendant and Appellant Luisa Navarro. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Eric E. Reynolds and Ana R. Duarte, Deputies Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. BA353811)
APPEAL from a judgment of the Superior Court of Los Angeles County. Jose I. Sandoval, Judge. Reversed and remanded.
Elizabeth Piliavin-Godwin, under appointment by the Court of Appeal, for Defendant and Appellant Luis Martinez Gonzales.
Linda Acaldo, under appointment by the Court of Appeal, for Defendant and Appellant Luisa Navarro.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Eric E. Reynolds and Ana R. Duarte, Deputies Attorney General, for Plaintiff and Respondent.
Appellants Luis Martinez Gonzales and Luisa Navarro appeal their convictions for one count of possession for sale of cocaine base (Health and Saf. Code, § 11351.5). Among other arguments, appellants contend that the trial court erred in denying their respective motions for an in camera review of law enforcement personnel files pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess), and in granting the prosecution's motion to set aside their joint peremptory challenge to a prospective juror pursuant to People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler). We conclude that the trial court properly denied the Pitchess motion brought by Gonzales, but abused its discretion in denying the motion brought by Navarro. We further conclude that the trial court committed reversible error in granting the prosecution's Wheeler motion and reseating the challenged juror. We accordingly reverse the judgment as to both Gonzales and Navarro, and remand the matter to the trial court for further proceedings consistent with this opinion.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
On March 7, 2009, at approximately 11:10 p.m., Los Angeles Police Officer John Hendrix and his partner were patrolling the area of 5th Street and Burlington Avenue, a neighborhood known by the police for narcotics and gang activity. There were several apartment buildings with security gates in the area. While on foot, Officer Hendrix saw a Hispanic man walk by the security gate of an apartment building on Burlington Avenue and whistle as he stared into the gate. Officer Hendrix then heard whistling from an apartment building across the way on 5th Street, and saw the man turn and walk toward the 5th Street building out of the officer's sight. As Officer Hendrix continued to observe the Burlington Avenue building for a few minutes, he saw two other Hispanic men "walk by and do the exact same thing, look into the gate, whistling."
At that point, Officer Hendrix changed his position so that he could have a better view of the apartment building on 5th Street where he had heard the other whistling. He saw Gonzales and Navarro for the first time standing on the second floor balcony of the building. They were talking on their cell phones and to one another while looking up and down the street. Officer Hendrix observed a van drive by the front of the 5th Street building. He heard whistling coming from the van followed by whistling coming from the building. He did not see anyone other than Gonzales and Navarro standing near the building. The driver looked in the direction of Gonzales and Navarro, and Navarro waved her hand in the direction of the van. The van came to a complete stop and the driver yelled something in Spanish.
Officer Hendrix then observed Gonzales pull a small item from his jacket pocket, and appear to count the contents of the item while holding it in his hand. Gonzales placed part of the item back in his pocket, concealed the other part in his hand, and walked out through the security gate. Gonzales approached the van and appeared to converse with the driver. From approximately 50 yards away, Officer Hendrix saw the driver hand Gonzales an item in the shape of currency, which Gonzales counted. Gonzales then handed the driver the item that was concealed in his hand, which the driver in turn counted. While Gonzales was speaking with the driver, Navarro stood on the balcony looking up and down 5th Street. After the van drove away, Gonzales walked back to the balcony and handed Navarro an item, which she counted and placed in her pocket. Gonzales and Navarro continued to talk to each other and on their cell phones as they looked up and down the street.
Officer Hendrix decided to detain both Gonzales and Navarro and requested that another unit respond to the scene in case they ran. Officer Hendrix then climbed over the security gate and directed his partner to do the same. The responding unit arrived at the front of the building as Officer Hendrix's partner was attempting to climb the gate. As soon as the unit arrived, Officer Hendrix saw Navarro look over and say something to Gonzales. Gonzales took off running in Officer Hendrix's direction, and came to a sudden stop when he saw the officer standing eight feet away. Gonzales grabbed a blue capsule containing a white substance from his pocket, crammed the contents into his mouth, and began eating it. He then threw the capsule on the ground and continued running. After a brief chase, Officer Hendrix grabbed Gonzales and took him into custody. Officer Hendrix observed white crumbs consistent with cocaine base inside Gonzales' mouth.
Los Angeles Police Officer Bradford Gorby was with the responding unit. Upon arriving on the scene, Officer Gorby observed Navarro leaning over the balcony and looking up and down 5th Street while talking on her cell phone. Navarro was arrested by Officer Gorby without incident and searched by Officer Laura Gerdes. From Navarro, the police recovered a cell phone and $124.28 in cash (including 31 dollar bills). From Gonzales, the police recovered $31 in cash (including 11 dollar bills), a clear plastic vial containing marijuana, and a glass pipe containing a residue consistent with marijuana. Officer Hendrix also recovered the blue capsule that Gonzales had thrown on the ground, along with some small wafers that had fallen from the capsule when Gonzales threw it. The wafers were later analyzed and determined to be 0.12 grams of cocaine base.
At the police station, Gonzales began to show signs of cocaine ingestion. He was transported by ambulance to a hospital where he was treated by an emergency room physician, Dr. Christopher Ng. Gonzales told Dr. Ng that he had orally ingested several rocks of cocaine, but had no physical complaints at that time. Dr. Ng initially determined that Gonzales was suitable for medical release; however, while he was being prepared for release to police custody, Gonzales became unstable, developed an accelerated heart rate, and appeared agitated, confused, and delusional. Dr. Ng had to treat Gonzales with multiple medications to control his symptoms. He also ordered a toxicology screen on Gonzales which was positive for cocaine and phencyclidine. It was Dr. Ng's opinion that orally ingesting cocaine was not a recreational method of using the drug, and that Gonzales' symptoms were consistent with a delayed reaction from the oral ingestion of cocaine.
Based on his training and experience, Officer Hendrix opined that Gonzales and Navarro possessed the cocaine for the purposes of sale. According to Officer Hendrix, the conduct of Gonzales and Navarro in talking on their cell phones in a known drug area at an apartment building from which the officer heard suspicious whistling was consistent with a drug sale. Gonzales's subsequent conduct in counting an item in his hand, exchanging it with a driver for another item that appeared to be cash, and then handing the cash to Navarro was consistent with a two-person sale where one dealer holds the drugs and the other holds the money. It was also Officer Hendrix's opinion that Navarro acted as a look out during the transaction and did not run from the police because she did not have the drugs on her person. Additionally, neither Gonzales nor Navarro resided at the apartment building where they were arrested, possessed any paraphernalia for smoking rock cocaine, or had any discoloration on their lips or hands as is commonly observed in rock cocaine users. Finally, as described by Officer Hendrix, both the cocaine base that he saw Gonzales swallow and the cocaine base that he saw Gonzales throw on the ground were usable amounts.
The jury convicted both Gonzales and Navarro as charged.
DISCUSSION
I. The Pitchess Motions
On appeal, Gonzales and Navarro each assert that the trial court erred in denying their respective Pitchess motions for an in camera review of the personnel files of Officer Hendrix and his partner, Officer Malabuyo. We conclude that the trial court properly denied the Pitchess motion brought by Gonzales, but abused its discretion in denying the Pitchess motion brought by Navarro.
A. Relevant Proceedings
Prior to trial, Gonzales filed a Pitchess motion seeking the personnel records of Officers Hendrix and Malabuyo for evidence of "racial prejudice, dishonesty, false arrest, illegal search and seizure, use of excessive force, the fabrication of charges and/or evidence," "any act involving morally lax character," "unnecessary acts of aggressive behavior, acts of violence and/or attempted violence, [and] acts of excessive force and/or attempted excessive force." The motion was supported by a declaration from Gonzales's attorney, Oscar Valencia, averring as follows: "The Jury in this case will have [to] determine whether or no[t] the Officers involved in this case that are called to testify can be believed. In the present case the Officers claim that they saw defendant from 50 yards away exchange money for drugs . . . a claim that is suspect at best. Therefore, Defendant needs the evidence requested to prepare a valid defense." The Los Angeles Police Department opposed the motion on the ground that Gonzales failed to set forth a specific factual scenario of officer misconduct, and thus, failed to show good cause for the discovery sought. The trial court denied Gonzales's motion, finding that the statements in the supporting declaration did "not give rise to police misconduct for which a Pitchess motion may be granted."
Navarro did not join in Gonzales's motion, but rather filed a separate pretrial Pitchess motion seeking the personnel records of Officers Hendrix and Malabuyo for evidence of "aggressive behavior, violence, excessive force, or attempted violence or excessive force . . ., racial bias, ethnic bias, coercive conduct, violation of constitutional rights, violation of civil rights, harassment of private individuals, fabrication of charges, fabrication of evidence, fabrication of reasonable suspicion and/or probabl[e] cause[,] false arrest, perjury, dishonesty, writing of false reports, writing of false reports to cover up the use of excessive force, the planting of evidence, and any other evidence of misconduct amounting to moral turpitude." In support of the motion, Navarro's attorney, Raul Sabado, submitted a declaration summarizing the allegations in the arrest report and setting forth Navarro's denial of those allegations as follows: "Ms. Navarro was standing on the second floor platform of the apartment complex only talking on her cell phone. At no time did Ms. Navarro ever wave or give any other nonverbal gesture/signal to anyone. Ms. Navarro stayed on the second floor of the balcony during that time and never went down to the ground floor of the complex. As Ms. Navarro was on the second floor platform of the complex she did not open the security gate for anyone nor leave it open for anyone to enter the complex. Ms. Navarro made no effort to warn Mr. Gonzale[s]; Ms. Navarro remained on the phone. Ms. Navarro did have US currency on her but it was given to her earlier by a family member[;] she receive[d] no money from Mr. Gonzales."
The Los Angeles Police Department opposed Navarro's Pitchess motion on the grounds that she did not set forth a nonculpable reason for her presence in the area or a sufficient factual basis for being singled out by the police, but merely denied the allegations in the arresting officers' report. Navarro's attorney thereafter submitted a supplemental declaration in which he averred as follows: "Ms. Navarro had recently become homeless and had no place to go. Because she had an acquaintance at that complex but could not gain access to her acquaintance's unit, she was standing on the second floor platform of the apartment complex with her friend. As she stood there, she spoke with her uncle on her cell phone. Ms. Navarro was not communicating with any drivers or anyone outside of the complex."
At the hearing on Navarro's Pitchess motion, counsel for the Los Angeles Police Department contended that, under People v. Thompson (2006) 141 Cal.App.4th 1312 (Thompson), Navarro's supporting declarations were still insufficient to show good cause because she did not accuse the arresting officers of planting evidence on her or assert that she had been singled out by the police. Navarro's counsel countered that Thompson did not require that his client allege that she had been singled out, and even if it did, it could be inferred from the declarations that the arresting officers singled out Navarro based on her physical proximity to Gonzales. Citing Thompson, the trial court denied Navarro's motion.
B. Applicable Law
"For approximately a quarter-century our trial courts have entertained what have become known as Pitchess motions, screening law enforcement personnel files in camera for evidence that may be relevant to a criminal defendant's defense." (People v. Mooc (2001) 26 Cal.4th 1216, 1225 (Mooc) (fn. omitted); see Pitchess, supra, 11 Cal.3d 531.) To balance the defendant's right to discovery of records pertinent to his or her defense with the peace officer's reasonable expectation that his or her personnel records will remain confidential, the Legislature has adopted a statutory scheme requiring a defendant to meet certain prerequisites before his or her request may be considered. (See Pen. Code, §§ 832.5, 832.7, and 832.8; Evid. Code, §§ 1043-1047 [statutory scheme governing Pitchess motions].) Specifically, a defendant seeking discovery of a peace officer's confidential personnel records must file a written motion describing the type of records or information sought (Evid. Code, § 1043) and include with the motion an affidavit demonstrating good cause for the discovery and the materiality of such evidence relative to the defense. (Mooc, supra, at p. 1226; see also Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1019 (Warrick).) The information must be requested with "sufficient specificity to preclude the possibility of a defendant's simply casting about for any helpful information." (Mooc, supra, at p. 1226.)
Once the trial court concludes that the defendant has satisfied these prerequisites, the custodian of records is obligated to bring to court all documents "'potentially relevant'" to the defendant's motion. (Mooc, supra, 26 Cal.4th at p. 1226.) The trial court must then examine the information in chambers, outside the presence of any person except the proper custodian "and any other persons as the person authorized to claim the privilege is willing to have present." (Evid. Code, §§ 915, subd. (b), 1045, subd. (b); see Warrick, supra, 35 Cal.4th at p. 1019.) Subject to certain statutory exceptions and limitations, the trial court must then disclose to the defendant "'such information that is relevant to the subject matter involved in the pending litigation.'" (Mooc, supra, at p. 1226; accord, Warrick, supra, at p. 1019.) "A trial court's ruling on a motion for access to law enforcement personnel records is subject to review for abuse of discretion. [Citation.]" (People v. Hughes (2002) 27 Cal.4th 287, 330.)
The trial court must exclude from discovery: "(b)(1) Information consisting of complaints concerning conduct occurring more than five years before the event or transaction that is the subject of the litigation in aid of which discovery or disclosure is sought. (2) In any criminal proceeding the conclusions of any officer investigating a complaint filed pursuant to Section 832.5 of the Penal Code. [¶] (3) Facts sought to be disclosed that are so remote as to make disclosure of little or no practical benefit." (Evid. Code, § 1045; see also Mooc, supra, 26 Cal.4th at pp. 1226-1227.)
In Warrick, the California Supreme Court made clear that, in addition to a specific description of the discovery sought and a demonstration of a logical link between the defense proposed and the pending charge, good cause for Pitchess discovery requires only that the defendant present a factual scenario of officer misconduct "that might or could have occurred[,]" explaining that "a credibility or persuasiveness standard at the Pitchess discovery stage would be inconsistent with the statutory language." (Warrick, supra, 35 Cal.4th at pp. 1021, 1026.) The Supreme Court also held that, depending on the circumstances of the case, the defendant's factual scenario "may consist of a denial of the facts asserted in the police report." (Id. at pp. 1024-1025.) Although a factual scenario need not be reasonably probable or credible, a sufficient plausible scenario must present "an assertion of specific police misconduct that is both internally consistent and supports the defense proposed to the charges." (Id. at p. 1026.)
C. The Trial Court Did Not Err In Denying Gonzales's Pitchess Motion.
In this case, we conclude that the trial court acted within its discretion in denying the Pitchess motion brought by Gonzales. The supporting declaration submitted by Gonzales's counsel failed to present a factual scenario of officer misconduct that might or could have occurred. Indeed, the declaration did not allege any officer misconduct at all. Instead, it simply stated that the arresting officers' claim that they observed a narcotics transaction from 50 yards away was "suspect." Gonzales did not deny that he had engaged in the alleged transaction, nor did he offer an alternative version of events that contradicted the facts asserted in the arrest report. Gonzales's Pitchess motion was therefore not based on any specific claim of officer misconduct, but rather on a more general allegation that the arresting officers lacked credibility. Even under the minimal standard enunciated in Warrick, this is insufficient to establish good cause for an in camera review. Gonzales's Pitchess motion was properly denied.
D. The Trial Court Did Err in Denying Navarro's Pitchess Motion.
We reach a different conclusion, however, with respect to the Pitchess motion brought by Navarro. Based on the two supporting declarations submitted by Navarro's counsel, the trial court should have granted the motion and conducted an in camera review of the personnel records of Officers Hendrix and Malabuyo for evidence of "fabrication of charges, fabrication of evidence, fabrication of reasonable suspicion and/or probabl[e] cause[,] false arrest, perjury, dishonesty, [and] writing of false reports." Unlike Gonzales, Navarro presented a plausible factual scenario of police misconduct to support her Pitchess motion. She specifically alleged that, contrary to the arresting officers' report, she did not wave or gesture at anyone from the balcony, did not accept any money from Gonzales, and did not make any attempt to warn Gonzales when officers arrived on the scene. She also provided a nonculpable reason for her presence on the balcony and her possession of over $100 in cash. Navarro asserted that she was waiting for an acquaintance who lived at the 5th Street apartment building and that she previously had been given the money found in her pocket by a family member.
To the extent Navarro's Pitchess motion sought discovery of evidence related to "aggressive behavior, violence, excessive force, or attempted violence or excessive force," "racial bias, ethnic bias, coercive conduct, violation of constitutional rights, violation of civil rights, harassment of private individuals," "planting of evidence, and any other evidence of misconduct amounting to moral turpitude," it was properly denied. (Warrick, supra, 35 Cal.4th at p. 1021 [The "specificity requirement" for Pitchess discovery "excludes requests for officer information that are irrelevant to the pending charges.").]
Plausibility, not ascertained fact, is the linchpin under Warrick; and it is conceivable that Officers Hendrix and Malabuyo fabricated the charges against Navarro by falsely claiming that she was directly involved in a drug deal. Evidence of complaints that Officers Hendrix and Malabuyo fabricated charges or falsified reports in other cases would have supported Navarro's defense in this case that she was an innocent bystander to a narcotics sale made solely by Gonzales. Accordingly, in contrast to the declaration submitted by Gonzales, Navarro's supporting declarations were sufficient "to establish not only a logical link between the defense proposed and the pending charge, but also to articulate how the discovery being sought would support such a defense or how it would impeach the officer[s'] version of events." (Warrick, supra, 35 Cal.4th at p. 1021.)
In denying Navarro's Pitchess motion, the trial court cited the decision in Thompson, supra, 141 Cal.App.4th 1312, but that case is clearly distinguishable. In Thompson, the defendant sought discovery of the personnel records of 11 police officers whom he claimed conspired to frame him for selling drugs as part of an undercover sting operation. In support of his Pitchess motion, the defendant submitted a declaration that was internally inconsistent and incomplete because it neither presented a factual account of the scope of the alleged police misconduct nor described the defendant's actions in a manner that adequately supported his defense. (Id. at p. 1317.) In discussing these deficiencies in the supporting declaration, the Court of Appeal noted that, among other things, the defendant had failed to "sufficiently present a factual basis for being singled out by the police." (Ibid.) However, the court never held that a specific factual showing of "being singled out by the police" was an essential element to establishing good cause under Pitchess. Here, Navarro not only denied the allegations in the arresting officers' report, but also offered a plausible nonculpable reason for her presence in the area. This was sufficient to demonstrate good cause for an in camera review.
Because the trial court erred in denying Navarro's Pitchess motion in its entirety without an in camera review, we must remand the matter to the trial court to conduct the required review of the personnel records requested by Navarro. If the trial court's in camera review reveals relevant information, as identified in this opinion, it must order the disclosure of the information to Navarro prior to retrial. II. The Wheeler Motion
When a trial court erroneously denies a Pitchess motion without conducting the required in camera review, the proper remedy is typically a conditional reversal with directions to review the requested records on remand, and if relevant information exists, to order its disclosure, allow the defendant an opportunity to demonstrate prejudice, and order a new trial if there is a reasonable probability that the outcome would have been different had the information been disclosed earlier. (People v. Gaines (2009) 46 Cal.4th 172, 180-181.) In this case, however, because we conclude that Navarro's conviction must be reversed on a separate basis as discussed below, Navarro is entitled to a new trial without a showing of prejudice in the denial of her Pitchess motion.
Gonzales also argues that the trial court committed reversible error when it granted the prosecution's Wheeler motion to set aside a joint peremptory challenge that had been exercised by the defense against an Asian-American prospective juror. Navarro joins in the argument. We agree that the trial court erroneously granted the Wheeler motion and that such error requires automatic reversal of the convictions.
A. Relevant Proceedings
Jury selection commenced on October 14, 2009, and concluded the following day. On October 15, the prosecution made a Wheeler motion to set aside the defense's joint peremptory challenge to prospective juror No. 11. The day before, juror No. 11 had told the trial court and the parties that he was married and lived in Alhambra, he worked as a receiving lab technician in a parachute factory, his wife was a housewife, and he did not have any prior juror experience. It does not appear from the record that the court or the parties asked juror No. 11 any additional questions, and he did not volunteer any responses to the questions posed to the panel as a whole. In a sidebar discussion with counsel about potential challenges for cause, the trial court noted that juror No. 11 had a "heavy accent," but did not have a language barrier. Neither the prosecution nor the defense objected to juror No. 11 at that time.
On October 15, the parties began exercising their peremptory challenges. The defense jointly excused juror Nos. 9, 14, 15, 16, and 12. The record does not reflect the race or ethnicity of these five excused jurors though it appears that two of them, possibly juror Nos. 9, 12, or 14, were Asian-American students. When the defense jointly exercised its sixth peremptory challenge to excuse juror No. 11, the prosecution made a Wheeler motion. The trial court asked juror No. 11 to take a seat. In a sidebar discussion with counsel, the following colloquy took place:
[Prosecutor]: I am making the court aware that the People are concerned with a specific group of people that are being kicked off the jury, specifically Asian. At this point, the People would make a Wheeler motion. Defense is it [sic] appears to be a pattern of kicking off jurors.
The Court: Are you making a Wheeler motion limited to juror No. 11?
[Prosecutor]: Yes.
The Court: Okay.
[Prosecutor]: Starting, yes.
The Court: Okay. He's the lab technician. I don't think any counsel directed any questions to him. The court had mentioned that he had an accent, but didn't think that he had any other issues regarding language. Looking at everything that I see, turning to the defense.
[Gonzales' Counsel]: Your Honor, I had him on my list, actually, from yesterday just because I felt that he wasn't really -- when the court was even talking to the group, I felt that he was basically -- his eyes were wandering all over the room. I didn't feel he was going to be an active participant in the jury process. There's nothing regarding his ethnic background. The other two that I kicked off, the students, basically said --The Court: The Wheeler motion is directed solely to No. 11.
[Gonzales' Counsel]: Some of the other ones kicked off were Asian. It had nothing to do with the race.
The Court: But we're focusing on No. 11.
[Gonzales' Counsel]: Number 11, I noticed that he was looking around the room and basically looked like he didn't want to be here. Other than that, there really is no -- I have no issue with him.
The Court: That's a joint. Do you want to express anything on the record, Mr. Sabado?
[Navarro's Counsel]: Yes, Your Honor. I'm leery of those who were either feign[ing] that they were not understanding English, or they really, really didn't understand English that well. Either they were faking that, they missed words here and [there] -- or they really do. Either way, I'm not sure that I'm comfortable with that kind of person sitting on the jury, irrespective of their ethnicity.
The Court: Are you saying then that, notwithstanding the fact that nothing was directed to him in terms of any response to any counsels' voir dire, you're concerned about a perceived lack of interest of wanting to be here?
[Gonzales' Counsel]: Right. That's correct.
The Court: And maybe some lack of comprehension?
[Navarro's Counsel]: Sure, or having to be here and maybe punishing one side in particular for it, and not knowing what side that might be.
The Court: Well, I -- that can be said of a lot of jurors here who didn't want to be here. So let me do this. It's the noon hour. I have to make a decision on whether or not there's a sufficient basis here independent of the juror's ethnicity as a protected class. He's Asian, he's a protected class, whether or not you've substantially rebutted any race-based basis for keeping him as a juror. We did talk about his language. Counsel didn't disagree with me when I said that although he's got an accent, he, you know -- it appears to the court that he's able to comprehend and could operate as a juror. So you're telling me that the -- you're just concerned about -- I don't think that he doesn't want to be here is -- has been demonstrated on the record. You mentioned something about body language or looking around. I frankly didn't see that.
[Gonzales' Counsel]: I can -- that's just what I noticed yesterday while he was here yesterday before counsel even got an opportunity to voir dire. I had already crossed him off as one that I thought was not going to really participate. So that was my only basis for kicking him off. Other than that -- I mean, you know, if the court wants to keep him, that's fine with me.
The Court: I'm just trying to equally and properly apply the standards. I'm trying to understand your independent analysis.
[Gonzales' Counsel]: I think he would make an excellent alternate, but the 12 we're going to have in the box, I would at least like to believe that the 12 are going to somehow work together and are going to want to listen to the evidence. And yesterday he even just seemed really disinterested in the whole process, so I marked him off basically on the peremptory, that he would be one that I would exercise. I didn't waste time on voir dire because I figured, what's the point if I'm going to kick him off. He's already high on the list.
The Court: Anything, Mr. Sabado?
[Navarro's Counsel]: No.
The Court: I don't think that the basis provided here for excusing this particular juror is sufficient to overcome the record. I don't think I have an independent basis for striking him as a juror. Body language, or not wanting to be here, as I said can be applied to any juror here. We had a fair number of jurors who tried to get off on hardship issues, or, you know,
quite frankly rolled [their] eyes when they walked into this courtroom because they had to serve on jury duty. So I'm going to deny -- I'm going to grant the Wheeler challenge. The alternative remedy is that he remain as a juror, that he is acceptable to the moving party?
[Prosecutor]: Yes.
The Court: Okay. That will be the court's order. Thank you. The defense thereafter accepted the jury as constituted. Juror No. 11 was seated on the panel that heard the case.
B. Applicable Law
It is well-established that "'[e]xercising peremptory challenges because of group bias rather than for reasons specific to the challenged prospective juror violates both the California Constitution and the United States Constitution.' [Citations.]" (People v. Cleveland (2004) 32 Cal.4th 704, 732.) Impermissible group bias includes bias based on a prospective juror's race or ethnicity. (Wheeler, supra, 22 Cal.3d at pp. 276-277; Batson v. Kentucky (1986) 476 U.S. 79, 89 (Batson).) When a party claims that the opposing party has exercised peremptory challenges based on racial or ethnic bias, the trial court must engage in the following three-step inquiry: "First, the trial court must determine whether the [moving party] has made a prima facie showing that the [opposing party] exercised a peremptory challenge based on race. Second, if the showing is made, the burden shifts to the [opposing party] to demonstrate that the challenges were exercised for a race-neutral reason. Third, the court determines whether the [moving party] has proven purposeful discrimination. The ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike. [Citation.]" (People v. Lenix (2008) 44 Cal.4th 602, 612-613.) These principles apply equally to both the prosecution and the defense. (People v. Willis (2002) 27 Cal.4th 811, 813.)
To state a prima facie case of group bias, the moving party must (1) raise the issue in a timely fashion, (2) make as complete a record as feasible, (3) establish that the persons excluded are members of a cognizable class, and (4) produce evidence sufficient to permit the trial court to draw an inference that discrimination has occurred. (People v. Gray (2005) 37 Cal.4th 168, 186.) Once a prima facie showing has been made, the burden shifts to the opposing party to set forth a group-neutral reason for the challenge. The opposing party "need only offer a genuine, reasonably specific, race- or group-neutral explanation related to the particular case being tried. [Citations.] The justification need not support a challenge for cause, and even a 'trivial' reason, if genuine and neutral, will suffice. [Citations.]" (People v. Arias (1996) 13 Cal.4th 92, 136.) "The proper focus of a Batson/Wheeler inquiry . . . is on the subjective genuineness of the race-neutral reasons given for the peremptory challenge, not on the objective reasonableness of those reasons. [Citation.]" (People v. Reynoso (2003) 31 Cal.4th 903, 924.)
"'We review a trial court's determination regarding the sufficiency of a [party's] justifications for exercising peremptory challenges "'with great restraint.'" [Citation.] We presume that [the party] uses peremptory challenges in a constitutional manner and give great deference to the trial court's ability to distinguish bona fide reasons from sham excuses. [Citation.] So long as the trial court makes a sincere and reasoned effort to evaluate the nondiscriminatory justifications offered, its conclusions are entitled to deference on appeal. [Citation.]' [Citation.]" (People v. Lenix, supra, 44 Cal. 4th at pp. 613-614, fn. omitted.) "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. Huggins (2006) 38 Cal.4th 175, 227.)
C. The Trial Court Erred In Granting the Prosecution's Wheeler Motion.
In this case, we conclude that the trial court's granting of the prosecution's Wheeler motion was not supported by substantial evidence. Based on the record before us, it appears that the trial court did not properly apply the three-step Batson/Wheeler inquiry in ruling on the prosecution's motion, but rather placed the burden on the defense to prove that purposeful discrimination did not occur. This was error.
First, the record reflects that the trial court did not hold the prosecution to its initial burden of demonstrating a prima face case of intentional discrimination. In making the Wheeler motion, the prosecutor stated that she was directing her motion solely to the defense's peremptory challenge to juror No. 11, an Asian-American. Although it is true that a prima facie case does not depend on the number of prospective jurors challenged (People v. Moss (1986) 188 Cal.App.3d 268, 277), the requisite showing is not made merely by establishing that an excluded juror was a member of a cognizable group. (People v. Bonilla (2007) 41 Cal.4th 313, 343; People v. Howard (2008) 42 Cal.4th 1000, 1018; People v. Bell (2007) 40 Cal.4th 582, 598.) Rather, "in drawing an inference of discrimination from the fact one party has excused 'most or all' members of a cognizable group [citation], a court finding a prima facie case is necessarily relying on an apparent pattern in the party's challenges." (People v. Bell, supra, at p. 598, fn. 3.) "Such a pattern will be difficult to discern when the number of challenges is extremely small." (People v. Bonilla, supra, at p. 343, fn. 12; see also People v. Howard, supra, at p. 1018, fn. 10 ["The challenge of one or two jurors, standing alone, can rarely suggest a pattern of impermissible exclusion."]; People v. Bell, supra, at p. 598, fn. 3 ["[T]o make a prima facie case after the excusal of only one or two members of a group is very difficult."].)
The Attorney General contends that the trial court impliedly found a prima facie case based on a pattern of the defense excusing Asian-American prospective jurors. However, the prosecutor never articulated a basis for her belief that there was such a pattern of impermissible exclusion, nor did she identify which other prospective jurors, or even how many prospective jurors, she believed were part of the alleged pattern. Instead, when asked by the trial court, the prosecutor stated that she was limiting her Wheeler motion to a single juror. Moreover, the trial court made clear that it was not considering the defense's exercise of peremptory challenges to anyone other than juror No. 11 in evaluating the motion. In fact, when Gonzales' attorney attempted to explain his reasons for excusing two other presumably Asian-American prospective jurors, the trial court interrupted and instructed him that the "Wheeler motion is directed solely to No. 11." Thus, the trial court actually precluded the defense from arguing that a prima facie showing of discrimination had not been made, and instead restricted defense counsel's argument to his reasons for striking a single juror.
Second, even assuming the prosecution established a prima facie case, the defense set forth a specific race-neutral reason for excusing juror No. 11. As Gonzales' attorney explained, he believed that juror No. 11 was being inattentive when the trial court was speaking to the panel and appeared disinterested in the entire process. Gonzales' attorney specifically observed that juror No. 11's "eyes were wandering all over the room" during the first day of jury selection, and he "basically looked like he didn't want to be here." "It is well settled that '[p]eremptory challenges based on counsel's personal observations are not improper.' [Citation.]" (People v. Reynoso, supra, 31 Cal.4th at p. 917 [no Wheeler violation where party's stated reason for striking a prospective juror was that she was not paying attention to the proceedings and was not sufficiently involved in the selection process].) Indeed, "'race-neutral reasons for peremptory challenges often invoke a juror's demeanor (e.g., nervousness, inattention)'" (People v. Lenix, supra, 44 Cal.4th at p. 614), and "'nothing in Wheeler disallows reliance on the prospective jurors' body language or manner of answering questions as a basis for rebutting a prima facie case' of exclusion for group bias. [Citation.]" (People v. Reynoso, supra, at p. 917.)
In rejecting the defense's stated reason for challenging juror No. 11, the trial court did not make a specific finding that the true reason was racially motivated. Rather, the court simply noted that it had not observed juror No. 11 "looking around," and that the body language of "not wanting to be here" could be applied to any prospective juror in the courtroom. However, as our Supreme Court has cautioned, "[t]he proper focus . . . is on the subjective genuineness of the race-neutral reasons given for the peremptory challenge, not on the objective reasonableness of those reasons." (People v. Reynoso, supra, 31 Cal.4th at p. 924.) While the trial court may not have viewed juror No. 11 as being any more or less interested in the jury process than other prospective jurors, "[a]ll that matters is that the [party's] reason for exercising the peremptory challenge is sincere and legitimate, legitimate in the sense of being nondiscriminatory. 'A "legitimate reason" is not a reason that makes sense, but a reason that does not deny equal protection. [Citations.]' [Citation.]" (Ibid.)
Third, it appears from the record that, once Gonzales' attorney articulated a race-neutral reason for the peremptory challenge, the trial court continued to place the burden on the defense to prove that intentional discrimination had not occurred. In the third step of the Batson/Wheeler inquiry, the trial court must determine whether the party opposing the peremptory challenge (in this case, the prosecution) has proven purposeful discrimination. However, after the defense explained its race-neutral reason for excusing juror No. 11, the trial court never turned to the prosecution for a response. In fact, apart from her initial statement that she was "concerned" about a possible defense pattern of striking Asian-American jurors, the prosecutor did not offer any argument in support of her Wheeler motion, nor was she asked to do so by the court. Instead, the trial court told defense counsel that, because juror No. 11 was in a protected class, it had to determine whether the defense had "substantially rebutted any race-based [reason] for keeping him as a juror." In essence, the trial court combined the second and third steps of the Batson/Wheeler inquiry and placed the burden on the defense both to provide a race-neutral reason for the peremptory challenge and to prove that the proffered reason was not pretextual. Because "[t]he ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike," this was error. (People v. Lenix, supra, 44 Cal.4th at pp. 612-613.)
Although reviewing courts generally '"accord great deference'" to the trial court's ruling on the genuineness of a party's reasons for its peremptory challenges, they "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." (People v. Silva (2001) 25 Cal.4th 345, 385-386.) In this case, the record reflects that the trial court misapplied the three-part Batson/Wheeler inquiry by failing to hold the parties to their respective burdens. The trial court therefore erred in granting the prosecution's Wheeler motion.
D. The Error Requires Reversal.
The question remains whether the trial court's error in granting the Wheeler motion and reseating juror No. 11 is reversible per se. Gonzales and Navarro argue that the error requires reversal without a showing of actual prejudice. The Attorney General disagrees, asserting that appellants are only entitled to reversal if they can demonstrate that their right to an impartial jury was affected by the erroneous ruling. We conclude that the trial court's error in this case requires automatic reversal.
In Rivera v. Illinois (2009) 556 U.S. 148 , the United States Supreme Court considered whether a state court's error in denying a peremptory challenge based on a purported Batson violation deprived the defendant of due process under the federal constitution, thereby requiring automatic reversal of his conviction. The Supreme Court held that "[i]f a defendant is tried before a qualified jury composed of individuals not challengeable for cause, the loss of a peremptory challenge due to a state court's good-faith error is not a matter of federal constitutional concern. Rather, it is a matter for the State to address under its own laws." (Id. at p. 157.) The court thus concluded the States were free to decide whether a trial court's erroneous denial of a peremptory challenge was reversible error per se, or was subject to a harmless error standard under applicable state law. (Id. at p. 162.)
Like the parties, we are unaware of any published California case that addresses the proper remedy when a trial court erroneously grants a prosecutor's Wheeler motion and reseats a juror who the defense legitimately sought to excuse. However, the California Supreme Court has recognized that "'[t]he peremptory challenge is a critical safeguard of the right to a fair trial before an impartial jury . . . .' [Citation.] 'The right to a fair and impartial jury is one of the most sacred and important of the guaranties of the constitution. Where it has been infringed, no inquiry as to the sufficiency of the evidence to show guilt is indulged and a conviction by a jury so selected must be set aside.' [Citation.]" (People v. Armendariz (1984) 37 Cal.3d 573, 583-584, superseded by statute on other grounds as stated in People v. Cottle (2006) 39 Cal.4th 246, 255.) Therefore, in cases where the trial court erroneously denies a defendant the right to exercise the statutorily required number of peremptory challenges, "California courts have consistently held that 'the failure to grant a defendant the prescribed number of peremptory challenges when the record reflects his desire to excuse a juror before whom he was tried is reversible error.' [Citations.]" (Id. at p. 584; see also People v. Yates (1983) 34 Cal.3d 644, 654 [trial court's error in limiting the defendant to less than the statutorily prescribed number of peremptory challenges was reversible per se]; People v. Marks (1986) 184 Cal.App.3d 458, 463 [same]; People v. Shaw (1965) 237 Cal.App.2d 606, 611 [same]; People v. Diaz (1951) 105 Cal.App.2d 690, 696 [same].)
Post-Rivera, other state appellate courts have remained split as to the proper remedy when a trial court erroneously denies a defendant the right to exercise a peremptory challenge based on an alleged Batson-type violation. In three published opinions from state appellate courts considering the impact of Rivera, it was held that such errors are reversible per se without a showing of prejudice. (See Commonwealth v. Hampton (Mass. 2010) 928 N.E.2d 917, 927 ["We continue to adhere to the view that, for purposes of State law, the erroneous denial of a peremptory challenge requires automatic reversal, without a showing of prejudice."]; People v. Hecker (N.Y. 2010) 942 N.E.2d 248, 272 ["Since, as the United States Supreme Court recently stated in Rivera, states are free to decide whether an erroneous denial of a peremptory challenge is reversible error per se, we perceive no basis to depart from our existing precedent [citation] and hold that the unjustified denial of a peremptory challenge . . . requires reversal without regard to harmless error."]; State v. Campbell (Minn.Ct.App. 2009) 772 N.W.2d 858, 862 ["We hold that automatic reversal remains the appropriate remedy when a trial court erroneously denies a defendant's peremptory challenge, even after the United States Supreme Court's recent decision in Rivera. . . ."].) Other courts continue to apply a harmless error standard. (See, e.g. State v. Letica (Mo. 2011) 2011 Mo. LEXIS 256 [citing Rivera and applying a harmless error standard to the trial court's erroneous denial of a peremptory challenge].)
Here, although Gonzales and Navarro were not deprived of their prescribed number of peremptory challenges, they were forced to go to trial with a juror that they could not excuse due to an erroneously granted Wheeler motion. Accordingly, like the defendants in the above-cited cases who were granted less than the allotted number of peremptory challenges, Gonzales and Navarro were denied the right "'to excuse a juror before whom [each] was tried'" based on the trial court's error. (People v. Armendariz, supra, 37 Cal.3d at p. 584.) Under these circumstances, we conclude that the error was reversible per se. The convictions of both Gonzales and Navarro must therefore be reversed.
In arguing that the erroneous granting of a prosecutor's Wheeler motion is not reversible per se, the Attorney General relies on cases where the trial court erred in denying a defendant's challenge for cause, which in turn required the defendant to exercise a peremptory challenge to excuse the objectionable juror. The California Supreme Court has held that, in such cases, the defendant is not entitled to reversal absent a showing that the error affected the right to a fair and impartial jury. (People v. Yeoman (2003) 31 Cal.4th 93, 114; People v. Bittaker (1989) 48 Cal.3d 1046, 1087-1088.) In this case, however, the trial court's error resulted in the challenged juror actually sitting on the jury before whom the case was tried. Once the trial court granted the Wheeler motion and reseated the challenged juror, appellants had no recourse through the jury selection process to cure the trial court's error.
In light of our conclusion that the trial court's error in granting the prosecution's Wheeler motion requires reversal of the convictions, we need not address appellants' remaining arguments on appeal regarding the sufficiency of the evidence supporting the convictions and alleged sentencing error.
--------
DISPOSITION
The judgments are reversed and the matter is remanded to the trial court. On remand, the trial court is to conduct an in camera review of the requested personnel records, as identified in this opinion, for relevance to Navarro's defense. If the in camera review reveals relevant information, the trial court must order the disclosure of the information to Navarro prior to retrial.
_________________
ZELON, J.
We concur:
_________________
PERLUSS, P. J.
_________________
WOODS, J.