Opinion
E031542.
7-28-2003
THE PEOPLE, Plaintiff and Respondent, v. JOSE IBARRA, Defendant and Appellant.
Nancy J. King, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Gil P. Gonzalez, Supervising Deputy Attorney General, and Garrett Beaumont, Senior Deputy Attorney General, for Plaintiff and Respondent.
A jury found Jose Ibarra, defendant and appellant, (hereafter, defendant) guilty of second degree murder in connection with the killing of his wife and further found true the special allegation that defendant personally used a deadly weapon, specifically an axe. The trial court sentenced defendant to serve a term of 16 years to life in state prison based on that verdict and true finding.
Correctly stated, the trial court sentenced defendant to a determinate term of one year on the weapons use enhancement to be followed by an indeterminate term of 15 years to life on the second degree murder conviction.
Defendant raises three claims of error in this appeal. First, he contends that the trial court erred in denying his so-called Wheeler/Batson motion. Next, he contends the trial court erred in denying his motion for mistrial which defendant contends he based on misconduct committed by both the trial court and the prosecutor. As his final claim, defendant contends the trial court committed reversible error by refusing defendants request to instruct the jury on involuntary manslaughter as a lesser included offense to the charged crime of murder.
People v. Wheeler (1978) 22 Cal.3d 258, 148 Cal. Rptr. 890, 583 P.2d 748 and Batson v. Kentucky (1986) 476 U.S. 79 [106 S. Ct. 1712, 90 L. Ed. 2d 69].
We agree for reasons we explain below that the trial court erred in denying defendants Wheeler motions. Therefore, we will reverse the judgment and remand this case for further proceedings on those motions, as described in detail, below. Defendants other claims of error are meritless.
FACTS
The factual details are undisputed. Defendant admitted killing his wife by hitting her in the head with an axe. The only issue at trial was defendants mental state at the time. According to his statement to the police, and his testimony at trial, defendant suspected that his wife was seeing another man. Based on that suspicion, on the morning of April 11, 2001, defendant left for work and then returned home around 5:00 a.m. Defendant found his wife about to leave the house on foot. When defendant confronted her, his wife told him that she was just going for a walk. Defendant did not believe her and later as the two were in the garage about to leave for work, defendant again asked his wife why she had been leaving the house so early. When she again said that she had been about to go out for a walk, defendant told her that he would hit her if she did not tell him the truth. As he made that statement, defendant grabbed the first thing that he saw, a small axe or hatchet, and hit his wife on the back of the head with it. Defendant told the police that he did not know how many times he struck Mrs. Ibarra but that he continued to hit her with the axe because he did not believe her.
When he did stop striking her, defendant either fainted or fell asleep and when he awoke, after about an hour, he saw only a small amount of blood on his wifes hands. Defendant believed his wife had fainted and did not think that she was dead. Defendant told a neighbor what had happened after which he went home and told his three daughters. One of defendants daughters went to the garage and screamed after spotting her mothers body on the garage floor. Two neighbors rushed over in response to the scream. One of the neighbors performed CPR on Mrs. Ibarra while the other spoke with the 911 operator. Mrs. Ibarra died as a result of the blows to her head.
In his statement of the facts, defendant notes the absence of blood on the axe as well as on his hands and clothing, as if that were significant. Defendant testified that his wife was wearing a hooded sweatshirt at the time and that when she fell down on the floor of the garage, the hood covered the back of her head. That in our view explains the absence of blood in what otherwise should have been a very bloody crime.
Additional facts will be discussed below as relevant to the issues defendant raises on appeal.
DISCUSSION
We address defendants claims according to the order established in his opening brief and therefore begin with his claim that the trial court erred in denying his Wheeler/Batson motion.
1.
WHEELER/BATSON MOTION
During jury selection, defendant made three motions to dismiss the prospective jury panel based on what defendant claimed was the prosecutors systematic exclusion of Hispanic and African American jurors. The trial court denied each of those motions. Defendant contends the trial court, for various reasons, erred. We agree with some aspects of defendants claim and therefore will reverse the judgment, for reasons we now explain.
A. Procedural Background
Defense counsel first moved to dismiss the jury panel after the prosecutor dismissed Mr. F. who is Hispanic. In that motion, defense counsel pointed out that the prosecutor had previously used peremptory challenges to dismiss Ms. D.-R., also Hispanic, and Mr. D., an African American. The trial court, without finding that defense counsel had made the requisite prima facie showing, offered explanations for the prosecutors action. According to the trial court, Mr. D. and Mr. F. both had "unpleasant and unfavorable experiences with law enforcement." After noting that defense counsel had also excused a prospective juror of "Hispanic origin," the trial court denied defense counsels motion, without addressing defendants challenge regarding Ms. D.-R.
Defendant did not ask the trial court for a ruling with respect to Ms. D.-R. nor does he complain on appeal that the trial court failed to address that aspect of his Wheeler objection. Therefore, we will not address that issue.
Defense counsel again moved to dismiss the jury panel after the prosecutor used a peremptory challenge to dismiss another Hispanic prospective juror, Ms. V. This time defense counsel objected not only to the prosecutors use of the peremptory challenge but also to the trial courts procedure for addressing the Wheeler claim. With respect to the procedure, defense counsel noted that the trial court allowed the motion to be made at sidebar but did not rule on the merits of the claim until the jury took a regularly scheduled break. Defense counsel complained that in the interval between the time the issue was raised and the trial court ruled, other jurors had been excused and the composition of the jury had changed. In that regard, the prosecutor had excused Ms. S., another Hispanic female juror, in the interval between defendants objection regarding Ms. V. and before the trial court ruled on that objection.
We use the designation "Wheeler motion" generically and intend that term to include defendants motion under Batson v. Kentucky.
The trial court justified the procedure by explaining that the court had not been inclined to grant the Wheeler motion and therefore continued with jury selection until "it was a convenient and appropriate time to take a recess and have this discussion on the record." As for the prosecutor excusing Ms. V., the trial court noted, first, that defense counsel had dismissed a female juror with a Hispanic surname, although the court was "not sure if she, herself, is Hispanic or not." After defense counsel noted that the juror in question "certainly didnt appear to be [Hispanic]," the trial court commented, "Im not certain of that, but nonetheless, its reasonable to assume that her husband is of Latin or Hispanic descent. So even though she may not be, shes involved in a relationship with someone who is."
In responding to defendants objection to the prosecutors peremptory challenge of Ms. V., the trial court again offered an explanation for the prosecutors conduct - that Ms. V. "was involved for 17 years in a very odd, strange relationship with her husband who was continually in and out of prison, and I found her responses and reactions to that somewhat unusual. And eventually, she did divorce him, but she was married to him for 17 years and indicated he was rarely home for more than a few days or weeks before he would be sent back to prison. So I think the Peoples exercise of the peremptory challenge with respect to her does not constitute a violation of the Batson-Wheeler standard as far as disqualifying a class of some ethnic group or having some ethnic basis for the excusal of a juror."
As for Ms. S., after defense counsel pointed out that she was the fourth Hispanic the prosecutor had excused, the trial court stated, "I think with respect to her excusal, I think a prima facie case now does appear in the Courts mind and Im going to ask the People to give an explanation or justification for her excusal." The prosecutor then offered three reasons for excusing Ms. S. First, another deputy district attorney had overheard Ms. S. talking outside the courtroom during a recess and had warned the prosecutor that he should watch out for her because she seemed too interested in understanding the attorneys reasons for excusing jurors. Second, the prosecutor noted that Ms. S.s daughter had been the victim of a "288" but Ms. S. did not know what had happened to the person "who victimized her daughter and that her solution to the problem was simply to ship her daughter to another area of the country, apparently. And [the prosecutor] felt as though that that didnt — she wasnt showing a significant interest in her daughter by not following up with this person who . . . apparently was predatory towards her daughter." Third, the prosecutor noted that Ms. S. was "divorced" and had "no idea" what her ex-husband was doing. To the prosecutor "that indicated a lack of ability to constructively resolve a dispute, you know, showing that she has no contact with her ex-husband, so those are my reasons. They have nothing to do with her ethnicity."
The trial court shared the prosecutors view of Ms. S. and stated that "it is somewhat odd or strange" that she did not appear to "show that much concern about what happened to her daughter or what happened to the perpetrator of that offense," and that she "did indicate that shes had no contact with her daughter" who apparently was living "somewhere on the East Coast." The trial court also noted that Ms. S.s father is a law enforcement officer with Los Angeles Police Department and that she may have had another relative involved in law enforcement, which "makes one wonder even more when she has that background." In the trial courts opinion, "Its all very strange and very odd and unusual at best for a mother to conduct herself that way." The trial court then denied defendants Wheeler motion as to Ms. S.
Defense counsel made a third Wheeler motion when the prosecutor excused Mr. T., an African American. As with the previous motions, the trial court did not address this motion on the record until a later break in the proceedings at which time the jury had been accepted by both sides and sworn. In addressing defendants motion, the trial court noted that defense counsel had excused an African American and a Hispanic just before the prosecutor excused Mr. T. After noting that the jury included two Hispanics and one Asian, the trial court denied the motion. Defendant then renewed each of his Wheeler objections in a motion for new trial, which the trial court also denied.
B. Analysis
Defendant contends that the trial courts procedure for addressing the Wheeler issues was unfair and that the trial court erred in denying his motions because the prosecutor failed to offer race neutral reasons for excusing the challenged jurors. It does appear from the record that the trial court was unfamiliar with the pertinent legal standard for assessing the merits of defendants Wheeler objections and as a result failed to conduct the pertinent inquiry.
"It is well settled that the use of peremptory challenges to remove prospective jurors solely on the basis of a presumed group bias based on membership in a racial group violates both the state and federal Constitutions. [Citations.] Under Wheeler and Batson, "if a party believes his opponent is using his peremptory challenges to strike jurors on the ground of group bias alone, he must raise the point in timely fashion and make a prima facie case of such discrimination to the satisfaction of the court. First, . . . he should make as complete a record of the circumstances as is feasible. Second, he must establish that the persons excluded are members of a cognizable group within the meaning of the representative cross-section rule. Third, from all the circumstances of the case he must show a strong likelihood [or reasonable inference] that such persons are being challenged because of their group association . . . ." [Citations.]" (People v. Box (2000) 23 Cal.4th 1153, 1187-1188.)
If the trial court finds that the moving party, the defendant in this case, has made the required prima facie showing, then the burden shifts to the opponent, the prosecutor here, to present group-neutral reasons for the peremptory challenges in question. (People v. Garceau (1993) 6 Cal.4th 140, 170-171, 862 P.2d 664.) We review the trial courts acceptance of the prosecutors explanations "with great restraint. The party seeking to justify a suspect excusal 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, 913 P.2d 980.) "If the trial court makes a "sincere and reasoned effort" to evaluate the nondiscriminatory justifications offered, its conclusions are entitled to deference on appeal. . . . [Citation.]" (Ibid.) In short, if the trial court made a "sincere and reasoned" assessment of the prosecutors explanation and the excused jurors responses support the prosecutors explanation and the trial courts findings, we must affirm. (Id. at p. 187.)
i. First Wheeler Motion
Defendants first Wheeler motion was directed at the prosecutors peremptory challenges of two Hispanics and an African American. The trial court did not determine whether defendant had made a prima facie showing but, as set out above, offered explanations for the prosecutors action. The trial court denied defendants motion after noting that defense counsel also had excused a prospective juror of "Hispanic origin."
The trial courts comments set out above suggest the trial court is of the view that Batson and Wheeler require the defendant to make a prima facie showing of "systematic exclusion" based on race or ethnicity. No such showing is required. (People v. Arias, supra, 13 Cal.4th at p. 136.) A single peremptory challenge based on race or group bias violates Wheeler and Batson. (People v. Montiel (1993) 5 Cal.4th 877, 909, 855 P.2d 1277.) Nor is the fact that defendant dismissed minority jurors relevant in determining whether the defendant has made a prima facie showing that the prosecutor has engaged in the discriminatory use of peremptory challenges. (People v. Arias, supra, 13 Cal.4th at pp. 136-137.) What is required is that the moving party make a prima facie showing that the prospective juror was challenged because of bias against the cognizable racial or ethnic group to which the juror belongs rather than because of specific bias pertinent to the individual juror. (People v. Box, supra, 23 Cal.4th at p. 1188.)
If the trial court finds that the moving party has made the required showing, the burden shifts to the opposing party to offer a race neutral explanation. Here, however, the trial court provided the explanation based on the trial courts view that if a race neutral reason could be provided, then no prima facie showing had been made. The trial courts view is wrong. As discussed above, once a trial court finds that a prima facie showing has been made, the burden shifts to the prosecutor to offer a race neutral justification. The pivotal factors in assessing the validity of that justification are whether the prosecutors explanation is not only neutral but also genuine. (People v. Arias, supra, 13 Cal.4th at p. 136.) Therefore, the prosecutor, not the trial court, must provide the explanation. In short, the dispositive issue is not whether any neutral explanation can be offered but rather whether the prosecutor actually has a neutral and specific basis, other than race or ethnicity, for excusing the prospective juror.
According to the trial court, "If there is an independent justification with respect to a specific juror, whether it be of Hispanic descent, an African-American, or a Caucasian, then I dont believe that a prima facie case has necessarily been raised."
Viewed according to the correct legal principles, the trial court properly denied defendants first Wheeler motion because defendant failed to make the requisite prima facie showing. Defendant, as set out above, showed only that Ms. R.-D. and Mr. F. were both Hispanic and Mr. D. was African American. Demonstrating only that the excused jurors were members of cognizable groups is insufficient to establish a prima facie showing of group bias. (People v. Howard (1992) 1 Cal.4th 1132, 1154, 824 P.2d 1315.) Thus, the trial court properly denied defendants first Wheeler motion even though the court relied on the wrong standard.
ii. Second Wheeler
Motion
In his second Wheeler motion, which defendant made after the prosecutor excused Ms. V. and Ms. S., both of whom are Hispanic, defendant asserted that neither of these two jurors had "expressed any sympathy for Mr. Ibarra or any inclination based on their own experience or the experience of those close to them to have any sort of bias or partiality in favor of Mr. Ibarra or for that matter, against the prosecution." The trial court found defendant made a prima facie showing as to Ms. S. but then denied defendants motion after the prosecutor offered his explanations for excusing her. We first address that aspect of the trial courts ruling.
a. Justification for Excusing Ms. S.
Reviewing the trial courts findings according to the above quoted principles we must determine, first, whether the prosecutor offered genuine, nondiscriminatory reasons for excusing Ms. S. and whether the trial court made a sincere and reasoned effort to evaluate the prosecutors explanation. Finally, we look to the record to determine whether it supports the trial courts finding. (People v. Arias, supra, 13 Cal.4th at p. 136.)
As set out above, the prosecutor offered three justifications for excusing Ms. S. The first was that another deputy district attorney had overheard Ms. S. talking outside the courtroom and advised the prosecutor not to keep her on the jury. Although arguably nondiscriminatory, the justification is based on events that occurred outside the courtroom. Therefore, this justification is not supported by the record on appeal and we must conclude that it is inadequate.
The prosecutors second justification was his feeling that Ms. S. was not sufficiently concerned about the outcome of the criminal case involving the molestation of her daughter. Ms. S. did state during voir dire that she had an "ex-friend" who had been charged with a "288" and the victim was Ms. S.s daughter. Ms. S. did not know how the case had come out because she had "washed [her] hands of the whole situation" by sending her daughter to Virginia, "[as] far away from it as I could get her." The trial court accepted the prosecutors justification and also noted, albeit improperly, that Ms. S. had family members, most significantly her father, employed in law enforcement. Because the record contains facts that support the prosecutors justification and because the justification is race neutral we must affirm the trial courts finding and related ruling denying defendants Wheeler motion as to Ms. S. (People v. Arias, supra, 13 Cal.4th at pp. 136-137.)
Because the prosecutors justification must be genuine in that it "actually prompted" the prosecutors peremptory challenge (People v. Fuentes (1991) 54 Cal.3d 707, 720, 286 Cal. Rptr. 792, 818 P.2d 75), the trial court "should not attempt to bolster a prosecutors legally insufficient reasons with new or additional factors drawn from the record . . . ." (People v. Ervin (2000) 22 Cal.4th 48, 77, 990 P.2d 506.)
b. Prima Facie Showing as to Ms. V.
Although we conclude that the trial court properly denied defendants motion as to Ms. S., we next must determine whether the trial court correctly found that defendant failed to make a prima facie showing of group bias with respect to Ms. V.
"What a party must do to establish a prima facie case of group bias under Wheeler is well settled. If a party believes his opponent is using his peremptory challenges to strike jurors on the ground of group bias alone, he must raise the point in timely fashion and make a prima facie case of such discrimination to the satisfaction of the court. First,
. . . he should make as complete a record of the circumstances as is feasible. Second, he must establish that the persons excluded are members of a cognizable group within the meaning of the representative cross-section rule. Third, from all the circumstances of the case he must show a strong likelihood that such persons are being challenged because of their group association rather than because of any specific bias. [Citations.]" (People v . Howard, supra, 1 Cal.4th at pp. 1153-1154, orig. emphasis.)
As previously noted, the trial court did not engage in the proper analysis regarding Ms. V. and therefore did not find either that defendant had failed to make a prima facie showing or that defendant had made such a showing which in turn would require a response from the prosecutor. Instead the trial court cited the fact that Ms. V.s husband of 17 years had been in and out of prison which led the trial court to conclude that the relationship was "very odd, strange." The trial courts opinion of Ms. V.s relationship with her husband is irrelevant. What matters is the prosecutors reason for excusing Ms. V., but the trial court did not solicit that information.
Because we are reversing the judgment, for reasons we explain below, based on the trial courts denial of defendants Wheeler objection regarding Mr. T., we will not engage in a lengthy discussion of the trial courts error and its impact. Instead, we will construe the trial courts ruling as an implied finding that defendant made a prima facie showing with respect to Ms. V. On remand, the prosecutor must justify his challenge of Ms. V. on race neutral grounds, and the trial court in turn must engage in a "sincere and reasoned" assessment of whether the prosecutors explanation is genuine, i.e., that it actually motivated the peremptory challenge. (People v. Arias , supra, 13 Cal.4th at p. 187.)
If, rather than proffering the explanation himself, the trial court had asked the prosecutor for his justification without first expressly finding that defendant had made the required prima facie showing, we would construe that act as an implied finding that defendant made the showing. (People v. Fuentes, supra, 54 Cal.3d at pp. 715-716.) There is no reason we can see not to draw the same inference when the trial court, rather than the attorney, offers the justification.
iii. Defendants Third Wheeler Motion
Finally, we must address defendants Wheeler objection regarding Mr. T., an African American juror. In making that objection, defense counsel stated that Mr. T., "who was a black man, light-skinned black man, indicated nothing in the way of bias, prejudice or any reason why he wouldnt want to sit or serve or anything else. He had prior jury experience. Seemed to be very straightforward, very responsive to the questions, both to Court and counsel." In denying defendants motion the trial court stated that it did not find "that the People have systematically excluded minorities from the jury" and in any event just before the prosecutor discharged Mr. T., defendant had discharged an African American juror. The trial court also noted "that the jury does consist of at least two Hispanics and one Asian."
The trial courts reasons for denying defendants Wheeler motion are irrelevant. As previously discussed, systematic exclusion is not required. A single improper peremptory challenge violates Wheeler and Batson. (People v. Montiel, supra, 5 Cal.4th at p. 909.) Defendants conduct in excusing jurors as well as the ultimate composition of the jury are equally irrelevant in assessing whether the prosecutor has violated Wheeler and Batson by making a race-based decision to excuse a juror. (People v. Arias, supra, 13 Cal.4th at p. 137.) The Supreme Court reiterated the proper procedure for addressing a Wheeler motion in People v. Turner (1994) 8 Cal.4th 137, 878 P.2d 521: "When a Wheeler motion is made, the party opposing the motion should be given an opportunity to respond to the motion, i.e., to argue that no prima facie case has been made. At this point no explanation for the exercise of the peremptory challenges need be given. After argument, the trial court should expressly rule on whether a prima facie showing has been made. [Citation.]" (Id. at p. 167, citing People v. Fuentes, supra, 54 Cal.3d at pp. 716-717, fn. 5.)
Although the trial court did not follow the proper procedure and in fact made irrelevant findings, we nevertheless construe the trial courts action as a finding that no prima facie case had been made. As People v. Howard, supra, 1 Cal.4th at p. 1155, counsels we must review the entire record of jury selection to determine whether the record supports such a finding and must affirm if the record includes facts which the prosecutor might reasonably have relied on to excuse Mr. T.
Our review of the record of jury selection persuades us that the trial court erred in finding that defendant had not made a prima facie showing that the prosecutor exercised his peremptory challenge of Mr. T. in a discriminatory manner. Defendant established that Mr. T., although light skinned, nevertheless is an African American man and therefore a member of a cognizable group. Defendant also made as complete a record as possible, citing Mr. T.s answers to questions, and in doing so established a strong likelihood that the prosecutor excused Mr. T. because of his race rather than because of a specific bias. (People v. Howard, supra, 1 Cal.4th at pp. 1153-1154.)
After the trial court denied defendants Wheeler motion, the prosecutor commented that it was not clear that Mr. T. is an African American, a view the prosecutor believed the trial court shared. The trial court, however, rejected the prosecutors assertion and agreed with defense counsel that Mr. T. appeared to the court to be a light skinned African American.
Nothing in Mr. T.s responses to any of the questioning on voir dire suggests an obvious race neutral basis for excusing him from the jury panel. Mr. T.s biographical information reveals that he is single, has no children, lives in Riverside and works in Palm Springs for a company that manufactures ventilators and respirators. About 10 years earlier, Mr. T. served on a civil jury that reached a verdict. He stated that he had "no reason not to have an open and impartial mind on the case before us." In response to specific questioning by the prosecutor, Mr. T. stated that he "absolutely" agreed that the People have a right to a fair trial. When the prosecutor asked whether there is any particular way a victim of crime looks or acts, Mr. T. answered, "No, not that I am aware." Mr. T. confirmed that "a victim of crime can be any person at any time" and that the victims ethnicity does not matter. When the prosecutor asked whether the victims lifestyle choices would make any difference to him, Mr. T. answered, "Its their choice." Mr. T. also stated that there was nothing in his experience or background that would make him biased against the victim or the prosecution, and sympathetic to defendant, if there was evidence presented that showed the victim was an adulterer. Mr. T. stated, "Im just looking at the case you present to me. Im not judging what either one did."
The record on appeal does not disclose an obvious reasonable race neutral basis for excusing Mr. T. from the jury. The absence of such a reason combined with the trial courts reliance on irrelevant and therefore improper grounds to deny defendants Wheeler objection requires us to reverse the judgment.
In accordance with People v. Tapia (1994) 25 Cal.App.4th 984, remand shall be limited to conducting new Wheeler motions regarding Ms. V. and Mr. T. At that hearing the trial court shall assume that defendant made a prima facie showing of wrongful exclusion of both prospective jurors and the burden shall be on the prosecutor to justify his peremptory challenges of those two jurors. The trial court in turn must then engage in a "sincere and reasoned" attempt to assess the prosecutors explanation not only to confirm that it is facially race neutral but also genuine, i.e., that it actually motivated the prosecutors peremptory challenge. (People v. Arias, supra, 13 Cal.4th at p. 187; see People v. Tapia, supra, 25 Cal.App.4th at p. 1031.)
iv. Procedure
Because we are reversing the judgment we will not address defendants challenge to the procedure the trial court used to address defendants Wheeler/Batson motions. We note, at least with respect to defendants first two Wheeler objections, that the trial court ruled during the sidebar conference that defendant had not made the required prima facie showing and then waited until the next recess to put the ruling on the record. It does appear that the trial court delayed ruling on defendants final Wheeler motion regarding Mr. T., a fact which suggests the trial court had decided to deny that motion even before the court had heard the merits. Moreover, the procedure is incorrect. As the Supreme Court observed in People v. Fuentes, supra, 54 Cal.3d at p. 717, "There is authority for the proposition that once the trial court has ruled, expressly or by implication, that a prima facie case had been made and that the burden has shifted to the prosecution, the court may not then return to the screening process. The sole issue then pending is the adequacy of the justifications. [Citations.]" The same limitation should also apply when the defendant has made an objection under Wheeler - the trial court may not return to jury selection without first ruling on whether the defendant has made the required prima facie showing. The trial court may delay putting that ruling on the record but in doing so runs the risk of appearing not to have ruled in the first instance. We encourage the trial court to modify his procedure in future cases.
2.
MISTRIAL MOTIONS
Defendant first moved for a mistrial after the prosecutor interrupted defense counsels opening statement numerous times with objections directed primarily at defense counsels reference to statements defendant made to his daughters shortly after the crime. The trial court did not rule on that mistrial motion but did rule that defendants statements to his daughters were admissible under the state of mind exception to the hearsay rule.
Defendant again moved for a mistrial when during the defense case in chief the trial court sustained hearsay and foundation objections to the testimony of Detective Paul DeJong, the Riverside City Police Officer who had first arrived at the scene and initially spoke with defendant. In discussing that ruling outside the presence of the jury, the trial court explained that the courts reason for the ruling was concern that the detective had not clearly understood what defendant was saying because, according to the detectives testimony, defendant spoke little English and the detective did not speak Spanish. Defense counsel moved for a mistrial apparently out of frustration with the trial courts view that the detectives understanding of what defendant said might not be accurate and therefore his testimony in that regard would not be admissible. In this second motion, defense counsel again cited the interruptions during his opening statement, which defendant attributed to the trial courts conduct, and argued that the trial court had made counsel look like a liar to the jury. The trial court denied defendants motion after extensive argument.
The trial court did allow defendant to lay a foundation for Detective DeJongs testimony and ultimately the trial court allowed the detective to testify about defendants statement.
Defendant now contends that he was denied a fair trial as a result of what he describes as both judicial and prosecutorial misconduct. According to defendant, by allowing the prosecutor to object during the defense opening statement, by changing his rulings on the admissibility of evidence, and by generally failing to control the prosecutor, the trial court deprived defendant of his right to a fair trial. We disagree with defendants view of the trial courts conduct and therefore must reject his claim on appeal.
A judge commits misconduct by persistently engaging in conduct that disparages the defense case or otherwise suggests the court has aligned himself or herself with the prosecution. (See People v. Carpenter (1997) 15 Cal.4th 312, 353, 935 P.2d 708; People v. Fudge (1994) 7 Cal.4th 1075, 1107, 875 P.2d 36; People v. Clark (1992) 3 Cal.4th 41, 143-149, 833 P.2d 561.)
The events defendant cites as constituting judicial misconduct are more accurately viewed as the usual and ordinary occurrences of trial. Although it is not common for a party to object during the opposing partys opening statement, it is not necessarily improper to do so if the objection is well taken. The prosecutors objections related to evidence that was inadmissible either because it was hearsay or was irrelevant. Therefore, the objections were well taken. The judge and the parties engaged in a lengthy exchange over who had the responsibility for raising the question of whether the challenged evidence was admissible. Defendant was of the view that because the trial court had allowed the statements in at his preliminary hearing the prosecutor should have challenged the admissibility of the statements at a hearing under Evidence Code section 402. The fact nevertheless remains that until the admissibility issue is resolved, the challenged evidence was inadmissible at trial and therefore should not have been cited in defendants opening statement. Consequently, neither the prosecutor nor the judge committed misconduct during defendants opening statement either by objecting or sustaining objections.
Whether the trial judges actions had the effect of giving the jury an adverse impression of defendant, as defendant urges, is pure speculation. But even if we accept defendants claim as accurate, that effect was the unintended and inadvertent result of the trial judges various rulings. We think it commendable that the trial judge was open to the possibility that his rulings were incorrect and changed his mind after reconsidering several of those rulings. Because the trial judges actions did not necessarily have the impact defendant urges and because that impact if it occurred was unintended, we must reject defendants claim that by changing his rulings on the admissibility of evidence, the trial judge committed misconduct.
Defendants claim of prosecutorial misconduct stems first from the prosecutors objections during defendants opening statement and next from the fact that the prosecutor did not timely disclose fingerprint evidence. We have addressed defendants claim regarding the objections during opening statement and will not address that claim again other than to reject it. To support his claim that prosecutor did not disclose fingerprint evidence in a timely manner, defendant cites an exchange that took place during the discussion of jury instructions when defendant asked the trial court to instruct the jury according to CALJIC No. 2.28.
The trial court did give CALJIC No. 2.28, as defendant requested, and thereby advised the jury that the prosecutor had not produced the fingerprint evidence within 30 days before trial as required by law, that the oversight was without lawful justification, and that the weight and significance of the delayed disclosure was for the jury to decide, taking into consideration "whether the untimely disclosed evidence pertains to a fact of importance, something trivial, or subject matters already established by other credible evidence." By instructing the jury according to CALJIC No. 2.28, the trial court admonished the jury and thus rectified any adverse effect defendant might have suffered as a result of the discovery violation. In short, defendants right to a fair trial was not infringed by the discovery violation.
Defendant did not claim in the trial court that the delay in producing the fingerprint results prevented him from adequately preparing for trial. Nor can he make such a claim on appeal. If the discovery delay affected defendants trial preparation, defendant should have requested a continuance, as the prosecutor argued in the trial court. Because he did not make such a request, we reasonably can conclude that the delayed production of the fingerprints taken from the axe did not affect his trial preparation, particularly since defendant did not deny that he used the axe to kill his wife. The only surprise would have been if the fingerprint in question had not matched any of defendants fingers.
Because the prosecutor did not engage in misconduct, the trial court was not derelict in his duty to control the prosecutor, defendants contrary view notwithstanding. Neither the prosecutor nor the trial court engaged in misconduct and therefore we must reject defendants claim that defendant was denied his right to a fair trial.
3.
INVOLUNTARY MANSLAUGHTER INSTRUCTION
Defendants final claim is that the trial court committed reversible error by refusing defendants request to instruct the jury on involuntary manslaughter. The trial court refused defendants request based on the trial courts view that the evidence did not support an involuntary manslaughter instruction. We agree with the trial court and therefore reject defendants claim.
The pertinent legal principle is undisputed. A trial courts duty to instruct the jury, whether sua sponte or on request, depends initially on whether there is evidence to support the instruction. Specifically, a trial court must instruct on those legal principles that are "closely and openly connected with the facts before the court." (People v. Breverman (1998) 19 Cal.4th 142, 154, 960 P.2d 1094.)
Defendant contends, as he did in the trial court, that involuntary manslaughter instructions were warranted based on defendants testimony that he did not intend to kill his wife and that he did not know what he was doing. According to defendant, that evidence warrants an instruction on involuntary manslaughter according to a theory of that crime that defendant contends is articulated in People v. Cameron (1994) 30 Cal.App.4th 591.
Although we do not share defendants interpretation of People v. Cameron, supra, we will not address the point. Defendants argument is based entirely on his assertion that there was evidence to show that defendant did not know what he was doing. There was no such evidence. In his trial testimony, defendant stated, in pertinent part, that he hit his wife twice in the back of the head with the axe. After the first blow, Mrs. Ibarra asked defendant what he was doing and tried to cover the back of her head with her hands. After the second blow, Mrs. Ibarra screamed and fell to the ground. Defendant testified, "I think that at that moment I had lost my mind by then." When asked what he did next, defendant said that he started to hit his wife with the axe again after she fell to the ground and that he continued to hit her with the axe. When asked whether he thought he might kill Mrs. Ibarra if he continued to hit her, defendant answered, "By that time I snapped. I lost control. And I - I became someone that I - wasnt me." When asked why defendant kept hitting his wife, he stated, "Again, that was the only time that something like this happened to me. And at the time that this was happening, I just lost control. I - its just I couldnt believe it was me doing that."
The noted testimony shows that defendant knew that he was hitting his wife with the axe. What he was not aware of, or was not thinking about, were the consequences of his action or why he kept hitting his wife after she fell to the ground. That evidence does not support any theory of involuntary manslaughter, even the nonstatutory theory posited by defendant, and at most describes the classic voluntary manslaughter scenario stemming from a jealous rage. The trial court did instruct the jury on voluntary manslaughter as a lesser offense to the charged crime of murder. Because involuntary manslaughter instructions were not supported by the evidence, we must reject defendants final claim of error in this appeal.
DISPOSITION
The judgment is reversed. The trial court is directed to hold a new hearing on defendants Wheeler motions regarding Ms. V. and Mr. T. At that hearing, the trial court shall determine whether the prosecution can still state reasons for exercising peremptory challenges with respect to those two prospective jurors. If so, the trial court then shall determine whether it can still conduct a sincere and reasoned evaluation of those stated reasons. If so, the trial court shall determine whether the prosecutors stated reasons are race-neutral and genuine. If so, the trial court shall reinstate the judgment; otherwise, the court shall grant defendant a new trial.
We concur: /s/ Gaut J., /s/ King J.