Opinion
B294827
02-10-2020
THE PEOPLE, Plaintiff and Respondent, v. ISRAEL GONZALEZ, Defendant and Appellant.
Aurora Elizabeth Bewicke, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Steven E. Mercer, Acting Supervising Deputy Attorney General, Esther P. Kim, Deputy 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. NA109345) APPEAL from a judgment of the Superior Court of Los Angeles County, James Otto, Judge. Affirmed. Aurora Elizabeth Bewicke, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Steven E. Mercer, Acting Supervising Deputy Attorney General, Esther P. Kim, Deputy Attorney General, for Plaintiff and Respondent.
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Israel Gonzalez appeals the prosecutor's use of peremptory challenges during jury selection, citing Batson v. Kentucky (1986) 476 U.S. 79 (Batson) and People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler). The trial court essentially found Gonzalez established a prima facie case of discrimination by the prosecutor against three separate classes: an African-American woman, an Hispanic woman, and a woman believed to be of Asian descent. In response, the prosecutor explained why she struck those three jurors. The court then validated these justifications. We affirm because the court correctly denied Gonzalez's motion. Gonzalez also forfeited his Dueñas objection. (See People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas).) All citations are to the Penal Code.
I
We summarize the relevant facts.
While stealing alcohol from a store, Gonzalez shouted out he was a Samoan Crip. His stealing led to charges of second degree robbery (§ 211; count one) and misdemeanor petty theft (§§ 484, subd. (a), 490.2; count three). Gonzalez had a strike conviction from 2010 and three other convictions.
During jury selection, the court excused seven jurors for cause: three women, two men, and two others whose gender does not appear in the record.
Gonzalez used eight peremptory challenges. These were against two men, two women, and four others whose gender is not discernible from the record.
The prosecutor used six peremptory strikes against Jurors 3, 7, 10, 19, 22, and 24. After these six strikes, Gonzalez made a Batson/Wheeler motion that is the subject of this appeal.
The procedural details of how this motion was stated, argued, and decided are central to this case, so we recount these facts in detail.
The prosecution's strikes were in this order.
1. Juror No. 7: a woman of unidentified race and ethnicity.
2. Juror No. 19: an African-American woman.
3. Juror No. 22: a woman of unidentified race and ethnicity.
4. Juror No. 24: a woman of unidentified race and ethnicity.
5. Juror No. 3: a woman who "might have been Asian, but I couldn't tell," according to the trial judge.
6. Juror No. 10: an Hispanic woman.
After the sixth strike, the defense attorney made her one and only Batson/Wheeler motion.
We recount the contours of this motion, which changed as the parties debated it and as the court made rulings.
Initially, the motion was about gender and gender alone: discrimination against women. The defense argued "all six of the jurors that the people kicked were female."
Then in mid-argument the defense attorney shifted from her focus on gender alone to concentrate on discrimination against gender and race. We italicize this point of change. The defense attorney said "every single juror that was excused by The People, every single one was female and several of them were minorities, including the last one with the last name of Martinez being Hispanic. There's also -- at any rate, an African-American female juror, number 19."
The court and the prosecutor responded to the defense's shift in focus. The court asked the prosecutor whether she would stipulate that "there's a cognizable group?" The prosecutor answered "I agree that juror number 10 is a female and she appears to be Hispanic. Juror 19 was a female and appeared to be black. Juror No. 3 is a female. I'm unaware of what her ethnicity is; I can't tell."
The court said: "Yes, I couldn't tell. She looked like she might have been Asian, but I couldn't tell. I find it was a cognizable group certainly among women, Hispanic and Black, and I find the prima facie case has been made. The People may now proceed with their argument as to why they exercised peremptories." (Italics added.)
The prosecutor then gave justifications for why she excused Jurors 3, 10, and 19, who were the three women also described by their race. The prosecutor said nothing about the women jurors who were not identified by their race: Jurors 7, 22, or 24.
The prosecutor concluded her statement of justification by giving two reasons she struck Juror No. 10, who was the Hispanic woman. The first reason was Juror No. 10's bad law enforcement experiences. The second was Juror No. 10's conduct in court: "She continues to roll her eyes. She shakes her head. That concerns me."
Next the court said, "Thank you. Wish to be heard further, Ms. O'Brien?"
Defense attorney O'Brien then spoke about Juror No. 10 and only about Juror No. 10. The defense attorney said "I did not see [Juror No. 10] roll her eyes or shake her head. I do believe that [the prosecutor] herself further rehabilitated [Juror No. 10] in regards to her feelings towards police officers as stated previously. Although officers will be testifying in this case, they are not percipient witnesses to what happened."
Ms. Vadgama, the prosecutor, then replied to the defense rebuttal about Juror No. 10. This colloquy involved only Juror No. 10. There was no discussion of other jurors. In particular, there was no mention of Jurors 7, 22, and 24, who were the women whose race had not been discussed and who had been the subject of the prosecution's first, third, and fourth peremptory strikes.
The court then said "Thank you. I think the reasons for exercising [the peremptory challenges] have been justified."
The court noted that, after the exercise of all peremptory challenges, six of the 11 jurors in the box were women.
The court ruled: "Motion is denied. I'll take a break, resume at 3:10."
No one spoke up before the break. After the break, everyone resumed the process of jury selection. There was no further discussion of the Batson/Wheeler motion.
The prosecutor never gave justifications for striking Jurors 7, 22, or 24, the women whose races were not discussed. The defense attorney did not comment on the prosecutor's concentration on the African-American woman, Hispanic woman, and possibly Asian woman. The defense never asked the court to order the prosecutor to justify striking the other women: Jurors 7, 22, or 24.
The court completed the panel of 12 jurors by adding male Juror No. 34.
There were no further peremptory challenges.
Neither side used all available peremptory strikes. Each side had at least 10 peremptories in this case. (Code Civ. Proc., § 231, subd. (a).) In total, the prosecution used six peremptories while the defense used eight. The prosecution could have struck, but did not try to strike, any of the six women remaining in the jury box. Those six women served on Gonzalez's jury, which consisted of six women and six men.
Neither side made a record of the racial or ethnic composition of the jury as sworn.
The jury convicted Gonzalez of robbery and theft. The court sentenced him to 11 years in prison and imposed fees and fines.
II
Gonzalez argues the court wrongly denied his Batson/Wheeler motion. This argument fails.
A
We begin with the basic law of Batson and Wheeler, which governs jury selection.
Peremptory challenges are also called peremptory strikes or peremptories for short. As distinguished from strikes for good cause, trial lawyers can use peremptories for any reason or for no reason at all. But they may not be used to exclude prospective jurors based on group membership such as race or gender. (People v. Armstrong (2019) 6 Cal.5th 735, 765 (Armstrong).)
If one side believes the other is using peremptories to discriminate in an objectionable way, they may make a Batson/Wheeler motion.
An established three-step protocol governs Batson/Wheeler motions. First, the objecting party must attempt to establish a prima facie case of improper discrimination by citing facts to support an inference of a discriminatory purpose. Second, if the court accepts this showing as a prima facie matter, the other side must justify its peremptory strikes by stating nondiscriminatory reasons for its strikes. Third, the trial court decides whether the moving party proved purposeful and improper discrimination. (People v. Rhoades (2019) 8 Cal.5th 393, 115-116.)
The ultimate burden of persuasion regarding discriminatory motivation rests with, and never shifts from, the opponent of the strike. (People v. Lenix (2008) 44 Cal.4th 602, 613 (Lenix).)
B
We set forth the standards of review, which are a bit complex.
Different standards of review govern first-stage and third-stage rulings in the Baston/Wheeler process. (Armstrong, supra, 6 Cal.5th at p. 766.)
First-stage rulings are subject to independent review. (See Armstrong, supra, 6 Cal.5th at p. 766 [citing People v. Sanchez (2016) 63 Cal.4th 411, 434-435].) Here, Gonzalez won a first-stage ruling from the trial court in that the court found a prima facie case as to "women, Hispanic and Black." We discuss and interpret this ruling in a moment.
At the third stage, appellate review is deferential. The decisive issue is the genuineness of the justifications offered, not their objective reasonableness. The question is whether the trial court found the prosecutor's neutral explanations to be credible. Credibility can be measured in many ways, which may turn in part on contemporaneous observations unavailable to the appellate court. Appellate review thus is greatly restrained, so long as the trial court made a sincere and reasoned effort to evaluate the prosecution's nondiscriminatory justifications. We affirm when substantial evidence supports the ruling. (Armstrong, supra, 6 Cal.5th at pp. 767-768.)
We presume the prosecutor exercised her peremptory challenges in a valid way. (People v. Gutierrez (2017) 2 Cal.5th 1150, 1159.) In assessing the prosecutor's credibility, the trial court is to look to its observations made during voir dire and to its own experiences. (Lenix, supra, 44 Cal.4th at p. 613.)
When the prosecutor's justifications are inherently plausible and supported by the record, the trial court need not question the prosecutor or make detailed findings. (People v. Williams (2013) 56 Cal.4th 630, 653.) The prosecutor is given great latitude in justifying her use of peremptories. So long as the reason provided is "genuine and neutral," it will suffice. (People v. Winbush (2017) 2 Cal.5th 402, 434.) Sufficient reasons include facial expressions, gestures, hunches, and arbitrary or idiosyncratic reasons. (Ibid.)
C
We now tackle the first of the two questions that are central to this appeal. That first question is whether Gonzalez's Batson/Wheeler motion is properly understood as one motion alleging the prosecution discriminated against women generally or as three motions alleging the prosecution discriminated against women of three separate races: African-American, Hispanic, and Asian. This point is important because the prosecution offered justifications regarding the latter but not the former.
The proper interpretation of the defense position is as an allegation of discrimination against three women of different races, not against women generally.
This case is unusual because Gonzalez began by proposing one definition of discrimination and then shifted the focus by narrowing and sharpening it. Gonzalez first proposed focusing on all women, regardless of race. Then Gonzalez refined that focus by zeroing in on three specific women, each of a different race.
The trial court found a prima facie case of discrimination "among women, Hispanic and Black." The reasonable interpretation of this finding is the court accepted Gonzalez's revised focus and found a prima facie case of discrimination against two separate groups: an Hispanic woman, and an African-American woman.
The People then offered justifications as to the use of peremptories against the three female jurors who were Hispanic, African-American, and possibly Asian: Jurors 3, 10, and 19. The parties debated the use of these three challenges. The court heard the prosecution's justifications for striking these three jurors. The parties discussed the justifications for these three strikes with the court. The court then denied Gonzalez's motion by finding the peremptory challenges were proper.
We review this process in detail.
The transcript shows the trial court accepted the defense's suggested invitation to make three motions based on discrimination against three women of different races. The court found a prima facie case for "women, Hispanic and Black." This phrasing appears to be like identifying Jill Smith as "Smith, Jill." The fact the prosecution also discussed the woman who may have been Asian makes it sensible to understand this as a discussion of three separate motions against three separate cognizable groups.
The discussion between the court and the parties fortifies this interpretation. This group discussion focused only on the women specifically identified by their race. After discussing the Hispanic juror, the African-American juror, and the possibly Asian juror, the court asked defense counsel "Wish to be heard further, Ms. O'Brien?" Defense counsel reinforced the court's sole focus on women identified by their races, as opposed to women generally, by confining her discussion to these three jurors. When the court, the prosecutor, and Gonzalez got into specifics, the defense did not mention jurors whose races had not been discussed.
The record showed at this point the trial court and the parties shared a focus that was exclusively on the women of African-American, Hispanic, and Asian descent. The defense did not pursue its original and broader focus on women in general.
Our independent review concludes that, despite unusual ambiguity in the motion process, the trial court was right to interpret the defense motion to charge discrimination against three separate groups (i.e. African-American women, Hispanic women, and Asian women) rather than against women generally.
There is an alternate and equivalent way to state our holding. It became clear the court believed Gonzalez's motion concerned three groups of women of identified races—rather than women generally. Once the prosecution addressed only excusing women of African-American, Hispanic, or Asian descent, it was incumbent upon Gonzalez to speak up if he wanted to restore the breadth of his motion to include all women generally. His failure to do so forfeits this claim. (See People v. Lewis (2008) 43 Cal.4th 415, 481-482, rejected on other grounds in People v. Black (2014) 58 Cal.4th 912, 919-920.)
The lesson for trial lawyers is to make your motion clear. True, time is precious and concentration is harried as one nears the end of jury selection: a roomful of restive people who know they probably will not be on this jury may be visibly impatient. The pressure to finish swiftly and get on with the trial may be palpable to all. Yet the trial court must know exactly what a moving party wants the court to decide. A party cannot create the impression with the trial court that the key issue is one thing and then on appeal, after the trial is over and jurors have all gone home, claim the issue includes some other thing too. The time for clarity is when the iron is hot.
In sum, the prosecutor was not required to justify excusing Jurors 7, 22, and 24—the women whose races were not identified or discussed—and the trial court rightly excluded those jurors from its Batson/Wheeler analysis. The trial court did not err in focusing only on women who were identified by their race, because this was the reasonable interpretation of focus of the defense's refined Batson/Wheeler motion.
D
The second question central to this appeal is whether the trial court was right to deny the defense motion about excluding these three women. Gonzalez contends the trial court improperly accepted the prosecutor's justifications for excusing these women by taking the prosecutor's explanations at face value, without asking follow up questions.
This argument is erroneous. The prosecutor gave strong reasons from the record that justified her decisions and made the trial judge's task an easy one. We treat each juror in turn: Juror No. 3, the "lacrosse juror"; Juror No. 10, the juror with the bad experience with an abusive policeman; and Juror No. 19, the juror who said the criminal justice system treated her son unfairly.
1
We begin with Juror No. 3, the lacrosse juror.
The prosecutor said she struck Juror No. 3 because this juror knew the defense attorney personally and regularly saw her at their children's lacrosse games. She would feel uncomfortable voting guilty, Juror No. 3 said, because she would encounter the defense attorney at lacrosse events after the trial. The record supports the prosecutor's valid reason for excusing this juror.
It is not common in Los Angeles courtrooms to encounter a juror with a personal connection with one of the trial lawyers. Some ten million people live in this county. But uncommon events occasionally occur. Here the juror unequivocally agreed she would be "uncomfortable" voting against the lawyer whom she would see at future lacrosse games. Juror No. 3 agreed she therefore "might not be able to be totally fair" to the prosecution. This statement was logical. It also was poison for the prosecution.
Juror No. 3's answers created a strong and valid justification for the prosecution's strike.
2
Juror No. 10 said she had a bad experience with a policeman. Juror No. 10 described it this way.
JUROR: A COUPLE YEARS AGO I WAS [WITH] MY MOTHER IN A TRAFFIC STOP. THE POLICE OFFICER WAS VERY RUDE TO US. HE DID USE WORDS THAT I WOULD NOT LIKE TO DESCRIBE IN THIS COURT.
SINCE THEN, I HAVE ALWAYS BEEN [A] LITTLE HESITANT TOWARD POLICE OFFICERS.
THE COURT: IS THAT GOING TO CAUSE YOU TO GIVE THE POLICE OFFICER THAT COMES TO TESTIFY LESS CREDIBILITY THAN ANOTHER WITNESS?
JUROR: NOT LESS, BUT I WOULD BE HESITANT AND I WOULD LIKE [TO] HAVE [A] LITTLE MORE QUESTIONS TOWARDS THE POLICE OFFICER.
THE COURT: YOU DON'T GET TO ASK QUESTIONS IN MY COURTROOM.
JUROR: YEAH, BUT I WOULD QUESTION."
This juror expanded on her bad experience.
JUROR: IT WAS JUST A TRAFFIC STOP AND MY MOM HAD A BROKEN TAILLIGHT. [MY MOTHER] DIDN'T SPEAK ANY ENGLISH AND . . . HE DIDN'T LIKE THE FACT I WAS INTERPRETING FOR HER, SO HE WAS VERBALLY ABUSIVE TOWARDS ME AND MY MOTHER AND SISTERS IN THE BACK OF THE CAR.
DEFENSE ATTORNEY: I'M SORRY TO HEAR THAT. DID IT RESULT IN A TICKET.
JUROR: IT WAS [A] TICKET, BUT I DID BRING IT UP. I DID GO TO THE SHERIFF'S STATION AND SAY A CERTAIN OFFICER WAS VERY RUDE TO ME[.] PRETTY MUCH THE SHERIFF SAID WHAT WOULD YOU LIKE ME TO DO? AND I NEVER HEARD BACK.
The prosecutor planned to call one police officer as a witness at trial and was concerned about Juror No. 10's potential bias towards police officers.
These exchanges created a strong justification for the prosecutor to strike Juror No. 10. Negative experience with law enforcement is a common and valid justification for a prosecutor's peremptory strike. (Lenix, supra, 44 Cal.4th at p. 628.) Juror No. 10 was forthright about the lingering effects of her experience with the rude and abusive policeman, which had prompted her to file a complaint. The fact police apparently did nothing about her complaint aggravated and generalized her powerfully bad experience.
The prosecutor also said she was concerned by Juror No. 10's courtroom demeanor, as she was "roll[ing] her eyes" and "shak[ing] her head," showing she was "annoyed" by the judicial system. (Cf. People v. Gutierrez (2002) 28 Cal.4th 1083, 1125 ["Hostile looks from a prospective juror can themselves support a peremptory challenge"].) The defense lawyer said she did not see Juror No. 10 roll her eyes or shake her head. This statement was consistent with the prosecutor's comment, because the defense attorney did not claim she had been watching Juror No. 10 at all times. Silent and transient events can be easy to miss.
3
Juror No. 19 spoke of her two sons. We italicize some words of obvious and legitimate concern to the prosecution.
JUROR: TWO SONS. ONE SON HAS BEEN TO JAIL. HE'S GOOD NOW. ONE IS ON PROBATION RIGHT NOW. . . .
THE COURT: DO YOU THINK THEY WERE TREATED FAIRLY BY THE CRIMINAL JUSTICE SYSTEM?
JUROR: OLDEST ONE, YES; YOUNGEST ONE, NOT SO MUCH. . . .
JUROR: THE OLDEST ONE LIVES IN ARIZONA.
THE COURT: WHAT'S THE OLDEST ONE DO FOR A LIVING? I TAKE IT THE ONE -- HE'S NOT THE ONE THAT YOU DON'T KNOW WHAT HE DOES FOR A LIVING.
JUROR: THAT'S RIGHT, THERE, HE DOES NOT -- HE'S A FAMILY PERSON.
THE COURT: OKAY. SO YOU DON'T KNOW?
JUROR: NO. SO REALLY WE SEE HIM WHEN IT'S THE HOLIDAYS AND THINGS LIKE THAT.
THE COURT: OKAY. BUT YOU DON'T KNOW WHAT HE DOES?
JUROR: NO.
Juror No. 19 had two sons who had experiences with the criminal justice system. The prosecutor was concerned Juror No. 19 did not know what one of her sons did for a living. Juror No. 19 had also made statements about her son's treatment in the judicial system to the effect the system was not fair. Distrust of the judicial system is a neutral reason to exclude a juror. (People v. Clark (2011) 52 Cal.4th 856, 907.)
Juror No. 19's responses created a strong basis for a peremptory challenge: two sons with criminal records, a belief the system had been unfair to one son, and a professed and puzzling ignorance about what a child did. "Voir dire is a process of risk assessment." (Lenix, supra, 44 Cal.4th at p. 624.) A reasonable prosecutor could view this juror as problematic.
Gonzalez incorrectly argues the prosecutor misstated the record and thus the trial court was required to ask questions and to challenge the prosecutor's proffered justifications. The prosecutor did make minor misstatements of the record, including claiming Juror No. 19 did not know why one of her sons went to prison, which the record does not support. Isolated mistakes or misstatements that the trial court recognizes as such are generally insufficient to demonstrate discriminatory intent. (People v. Silva (2001) 25 Cal.4th 345, 385 (Silva).)
It is true but irrelevant that the trial court must follow up with additional questioning if the record provides no support for the stated justifications. (See Silva, supra, 25 Cal.4th at p. 385.) Here, there was support for the prosecutor's main justifications for excusing Jurors 3, 10, and 19.
Gonzalez relies heavily on the Silva case. In Silva, the prosecutor "revealed an acute sensitivity to the presence of Hispanics on the jury panel and an evident belief that Hispanics would not be favorable jurors for the prosecution." (Silva, supra, 25 Cal.4th at p. 375.) That case is worlds away from this one.
The prosecutor's justifications for excusing these panelists were neutral, strong, and supported by the record. The trial court ruling was reasoned and sound. The court did not err by accepting the prosecutor's justifications without further questioning because more questions were unnecessary.
III
Gonzalez forfeited his challenge to the fines and fees by failing to raise it in the trial court. (People v. Frandsen (2019) 33 Cal.App.5th 1126, 1153-1155.)
DISPOSITION
The judgment is affirmed.
WILEY, J. We concur:
BIGELOW, P. J.
STRATTON, J.