Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. NA078185 Charles D. Sheldon, Judge.
Tracy A. Rogers, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Steven D. Matthews and Shawn McGahey Webb, Deputy Attorneys General, for Plaintiff and Respondent.
KITCHING, J.
Appellant Dwight Eric Lampkin appeals from the judgment entered following his convictions by jury on count 1 – leaving the scene of an accident (Veh. Code, § 20001, subds. (a), (b)(2)) and count 3 – hit and run driving (Veh. Code, § 20002, subd. (a)). The court sentenced appellant to prison for three years. We affirm the judgment.
FACTUAL and PROCEDURAL SUMMARY
During jury selection, Juror Nos. 2, 3 and 10, Caucasian women, were among the 12 prospective jurors initially seated in the jury box. The remaining persons were two women of unidentified race, five men, and one person of unidentified gender and race.
The facts of the present 2008 offenses are not pertinent to this appeal.
Juror No. 2 was a married homemaker with three daughters, and she lived in Rancho Palos Verdes. Her husband was a self-employed heating and air conditioning contractor. One of Juror No. 2’s daughters was a personal assistant, another was a college student, and the third was a minor. Juror No. 2 had no close associates in law enforcement.
Juror No. 3 was a married owner of an antique store and lived in Long Beach. Her husband was a high school teacher and her daughter was a homemaker. Juror No. 3 had a close family friend who was a bailiff in a court which was handling civil cases in the courthouse in which appellant’s case was being tried. Juror No. 3 indicated she would not be biased for or against law enforcement.
Juror No. 10 was a married retired eligibility worker for the Department of Social Services. Her husband was a retired rigger for an oil company. She had five adult children and four grandchildren. Her four grandchildren and their spouses were sheriff’s deputies. Juror No. 10 indicated she would not be biased for or against law enforcement. She had no prior jury experience.
During voir dire of the prospective jurors, appellant asked questions of the prospective jurors collectively, but did not individually question Juror No. 2 or 3. He individually questioned No. 10 on the issue of her consumption of alcohol after he posed a question to the jurors collectively and she indicated she had once consumed alcohol.
During jury selection, and after exercising a peremptory challenge, appellant used peremptory challenges to excuse two Caucasian women, i.e., Juror No. 10, then Juror No. 3. Appellant later attempted to excuse Juror No. 2, but the court asked for a sidebar conference. At the time, Juror No. 2 was one of two Caucasian women (the other was Juror No. 6) in the jury box. The remaining persons were one woman of unidentified race, eight men, and one person of unidentified gender and race.
During the sidebar conference, the court explained it was having a “Wheeler hearing at the court’s discretion[.]” The court noted appellant previously had excused a Caucasian woman (Juror No. 3), then the following occurred: “[The Court:] Are you violating Wheeler, or do you have reasons? [¶] [Appellant’s Counsel:] No, I have reasons. [¶] The Court: Give me reasons for No. 2. [¶] [Appellant’s Counsel:] No. 2... my impression of her, she is an upper middle class White woman. And as I recall -- I don’t have my sheet with me. [¶] The Court: Do you want to get your sheet because we’re making a record. [¶] [Appellant’s Counsel:] I will get my sheet.”
People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler).
Later, the following occurred at sidebar: “The Court: Now that you have your notes, do you have anything you would like to say? [¶] [Appellant’s Counsel:] With regard to No. 2, also her husband is self-employed. In my experience, people who are independent business people and their spouses make poor defense jurors. [¶] The Court: What do you want to say about No. 3, White female? [¶] [Appellant’s Counsel:] She also is an independent business person, an owner of an antique store. She also has a close family friend who is a law enforcement officer, in fact, in this building. She said, I think -- [¶] The Court: Bailiff. [¶] [The Prosecutor:] Yes, your Honor. That was the bailiff. [¶] The Court: I got it. Now, I’m not sure my notes are correct. Do you know of any other White females? [¶] [The Prosecutor:] No. 10. [¶] The Court: Okay. Let’s hear about No. 10.”
The following occurred: “[Appellant’s Counsel:] She used to work for the Department of Public Social Services, and I have worked 300 cases myself and feel that workers for Department of Public Social Services are poor defense jurors. [¶] The Court: Frankly, I haven’t heard reasons for these challenges that get around Wheeler. I am leaving Juror No. 2 on the panel. And that’s my authority by the United States Supreme Court.” The court indicated to counsel for both parties that they were not to exercise race-based peremptory challenges. Appellant described himself during trial as “half Black, half Japanese.”
Juror No. 6 was a married civil engineer who lived in Long Beach. During voir dire, she stated her husband was an engineer, she had no close associates in law enforcement, and she had no prior jury experience. After the trial court denied appellant’s peremptory challenge as to Juror No. 2, appellant exercised his next peremptory challenge as to Juror No. 6. The following then occurred: “The Court: Juror No. 6. Wait a minute. Stay there. We’re going to chambers again. [¶]... [¶] We’re in chambers again. Juror No. 6 is a White female. What is your reason, if any? [¶] [Appellant’s Counsel:] She’s a civil engineer. My thoughts about engineers, based on my 35 years of practice, is that they see things in black and white and not shades of gray, and that they are therefore poor jurors for the defense. I don’t like any of the engineers that are on there. [¶] The Court: It seems to me you don’t like White female jurors. I’m going to allow that challenge, but I’m saying again, counsel, you have a little different view, it seems to me, of the law. Goes all the way up to the United States Supreme Court where I have an obligation. [¶] I’ll just give you one last warning. I don’t want to have to start this jury selection over, but I will if I have to.”
CONTENTIONS
Appellant claims the trial court denied his rights to a fair trial and due process by conducting a Wheeler motion sua sponte and refusing to excuse Juror No. 2.
DISCUSSION
Appellant makes a series of arguments in support of his claim that the trial court erred in connection with his peremptory challenge as to Juror No. 2. We address them below.
Appellant, citing, inter alia, Code of Civil Procedure section 226, subdivision (b) (which states “no reason need be given for a peremptory challenge”) argues the trial court was without authority to deny his challenge to Juror No. 2. We disagree. In Wheeler, supra, 22 Cal.3d 258, our Supreme Court stated, “[w]e conclude that the use of peremptory challenges to remove prospective jurors on the sole ground of group bias violates the right to trial by a jury drawn from a representative cross-section of the community under article I, section 16, of the California Constitution.” (Id. at pp. 276-277.) Batson v. Kentucky (1986) 476 U.S. 79 [90 L.Ed.2d 69] (Batson) holds the exercise of peremptory challenges solely on the basis of race offends the Fourteenth Amendment’s guaranty of the equal protection of the laws. (People v. Huggins (2006) 38 Cal.4th 175, 226.) As our Supreme Court stated in People v. Salcido (2008) 44 Cal.4th 93, 136, “Subject to rebuttal, a presumption exists that a peremptory challenge is properly exercised, and the burden is upon the opposing party to demonstrate impermissible discrimination against a cognizable group.” (Italics added.)
Appellant argues the trial court could not, on its own motion, raise a Wheeler-Batson challenge, the trial court could not impartially decide whether the requisite prima facie showing had been made, and the People (not the court) had the burden of persuasion to prove purposeful discrimination by appellant. However, the issue of whether a trial court could raise a Wheeler challenge on its own motion was adequately addressed in People v. Lopez (1991) 3 Cal.App.4th Supp. 11 (Lopez). Although Lopez is not binding on this court, we find it illuminating. In Lopez, the defendant had excused two Chinese persons from the jury and tried to excuse a third. However, the court asked the defendant to explain his reasons for challenging the third, the defendant proffered reasons, and the court found he was trying to exclude Chinese persons from the jury and denied his peremptory challenge to the third Chinese juror. (Id. at Supp., pp. 13-14.)
“When a defendant asserts at trial that the prosecution’s use of peremptory strikes violates the federal Constitution, the following procedures and standards apply. ‘First, the defendant must make out a prima facie case “by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose.” [Citation.] Second, once the defendant has made out a prima facie case, the “burden shifts to the State to explain adequately the racial exclusion” by offering permissible race-neutral justifications for the strikes. [Citations.] Third, “[i]f a race-neutral explanation is tendered, the trial court must then decide... whether the opponent of the strike has proved purposeful racial discrimination.” [Citation.]’ [Citations.] The identical three-step procedure applies when the challenge is brought under the California Constitution. [Citation.].” (People v. Cowan (2010) 50 Cal.4th 401, 447.) Wheeler-Batson principles apply whether the People or the defendant is the complaining party. (People v. Willis (2002) 27 Cal.4th 811, 813 (Willis).)
Lopez stated, “[w]hile the Wheeler court may have contemplated that one or the other of the parties would initiate the process by objecting to the discriminatory use of peremptory challenges, the court noted that the right to an impartial jury drawn from a cross-section of the community is part of the ‘American system’ or ‘American tradition.’ (Wheeler, supra, 22 Cal.3d at p. 272.) The courts have a responsibility to enforce this guaranty.... Given this posture, the trial court below was inherently empowered to initiate a Wheeler proceeding on its own motion when it perceived that one of the litigants appeared to be challenging prospective jurors because of race.” (Lopez, supra, 3 Cal.App.4th Supp. at p. 15.)
Lopez continued, “ ‘a judge is not a mere umpire presiding over a contest of wits between professional opponents, but a judicial officer entrusted with the grave task of determining where justice lies under the law....’ [Citations.] [¶] Additionally, if the court were to permit litigants to use race as a basis for their peremptory challenges, it might well engender disrespect for the judicial process and undermine the credibility and effectiveness of the courts. Given these considerations, we see no reason that a trial court should be required in all cases to sit by unless and until one of the lawyers objects.... To protect the legitimacy of the judicial system, the courts must ensure that persons are not excluded from jury service based on their race. Thus, the trial court did not err when it initiated Wheeler proceedings on its own initiative.” (Lopez, supra, 3 Cal.App.4th at pp. 15-16; see also Pen. Code, § 1044.) Appellant suggests trial courts might raise Wheeler-Batson issues “in the most egregious of circumstances” but articulates no principled basis upon which we might decide when that criterion applies.
We note a concurring opinion in People v. Ledesma (1987) 43 Cal.3d 171 (Ledesma) “commend[ed] the [trial] court for raising the Wheeler issue sua sponte.” (Ledesma, at p. 230, fn. 1 (conc. opn. of Mosk, J.).) We also note the Legislature weighed in on this issue in 2000, adding Code of Civil Procedure section 231.5, which states, “A party may not use a peremptory challenge to remove a prospective juror on the basis of an assumption that the prospective juror is biased merely because of his or her... sex[.]” (Code Civ. Proc., § 231.5, added by Stats. 2000, ch. 43, § 3.)
We reject appellant’s claim that the trial court could not raise a Wheeler-Batson challenge sua sponte. For similar reasons, we reject his claim that the sua sponte challenge, and/or the trial court’s comments during the ensuing proceedings, demonstrate the trial court lacked impartiality. Nothing indicates the trial court became embroiled in this matter. Moreover, because we conclude below that the burden of persuasion on the issue of appellant’s purposeful discrimination was met, we reject appellant’s suggestion that the People, and not the trial court, had that burden and, therefore, the trial court erred by refusing to exclude Juror No. 2.
Appellant argues that the People (not the court) had the burden of persuasion to make a prima facie showing, and appellant met his burden of persuasion regarding race-neutral justifications. However, we reject appellant’s premise that a burden of persuasion is implicated in the making of a prima facie showing or the proffering of race-neutral justifications under Batson. “The first two Batson steps govern the production of evidence that allows the trial court to determine the persuasiveness of the defendant’s constitutional claim. ‘It is not until the third step that the persuasiveness of the justification becomes relevant-the step in which the trial court determines whether the opponent of the strike has carried his burden of proving purposeful discrimination.’ ” (Johnson v. California (2005) 545 U.S. 162, 171 [162 L.Ed.2d 129, 140] (Johnson), italics added; see 545 U.S. at p. 171, fn. 7.)
Appellant argues no prima facie showing was made. We disagree. The determination of whether a defendant has established a prima facie case is largely within the province of the trial court whose decision is subject only to limited review. (People v. Wimberly (1992) 5 Cal.App.4th 773, 782.) In the present case, appellant used three of his first four peremptories to try to exclude Caucasian women. He was successful as to Juror Nos. 10 and 3, and would have been as to Juror No. 2 but for the trial court’s intervention.
Although the record reflects there were four Caucasian women initially seated in the jury box, the record does not reflect there were any Caucasian women in the jury box other than Juror Nos. 2 and 6 when appellant tried to excuse Juror No. 2. Appellant posed no individual questions to Juror No. 2 during voir dire. Juror Nos. 2, 3, and 10 shared few characteristics other than the fact they were Caucasian women. Appellant concedes the trial court determined that a prima facie showing existed. We conclude the trial court did not err in concluding a prima facie case had been made. (Cf. People v. Moss (1986) 188 Cal.App.3d 268, 275-277; Williams v. Runnels (9th Cir. 2006) 432 F.3d 1102, 1103, 1107, 1109.)
Appellant argues the trial court made no finding that a prima facie showing had been made. We disagree. The trial court took the initiative to conduct a Wheeler hearing. It began its inquiry by asking appellant if he was violating Wheeler or “ha[d] reasons.” We presume the trial court knew the law as set forth in Wheeler and Batson. (Cf. People v. Mosley (1997) 53 Cal.App.4th 489, 496-497, 499; Evid. Code, § 664.) Fairly read, then, the record indicates the trial court was inquiring whether appellant was violating Wheeler or had reasons, i.e., race-neutral justifications, for excusing Caucasian women jurors. The alternatives posed by the trial court presupposed the trial court had determined that a prima facie showing had been made. We conclude the trial court’s above inquiry constituted an implied finding that a prima facie showing had been made. (People v. Lewis (2008) 43 Cal.4th 415, 470-471 (Lewis).)
Moreover, Lewis stated, “by proffering his reasons for excusing [a prospective juror], the prosecutor rendered moot the question whether a prima facie case existed. (See Hernandez v. New York (1991) 500 U.S. 352, 359 [114 L.Ed.2d 395] [‘Once a prosecutor has offered a race-neutral explanation for the peremptory challenges and the trial court has ruled on the ultimate question of intentional discrimination, the preliminary issue of whether the defendant had made a prima facie showing becomes moot.’].)” (Lewis, supra, 43 Cal.4th at p. 471; see People v. Arias (1996) 13 Cal.4th 92, 135.) This principle equally applies here, where appellant proffered race-neutral explanations and the trial court ruled.
Appellant argues purposeful discrimination was not proven. We reject the argument. In People v. Fuentes (1991) 54 Cal.3d 707 (Fuentes), our Supreme Court stated, “This court and the high court have professed confidence in trial judges’ ability to determine the sufficiency of the prosecutor’s explanations. In Wheeler, we said that we will ‘rely on the good judgment of the trial courts to distinguish bona fide reasons for such peremptories from sham excuses belatedly contrived to avoid admitting acts of group discrimination.’ (Wheeler, supra, 22 Cal.3d at p. 282.) Similarly, the high court stated in Batson v. Kentucky [(1986) 476 U.S. 79], that ‘the trial judge’s findings in the context under consideration here largely will turn on evaluation of credibility, ’ and for that reason ‘a reviewing court ordinarily should give those findings great deference.’ ” (Fuentes, at p. 714.)
In the present case, appellant’s counsel’s initial statement of his justification for excusing Juror No. 2 included the fact that she was a “White woman.” This was telling evidence that appellant’s counsel attempted to excuse Juror No. 2 based on the impermissible group bias of race, if not also gender. Appellant’s counsel indicated the fact she was a White woman was part of appellant’s counsel’s “impression” of her, an indication his statement reflected his actual state of mind at the time he attempted to excuse her. Appellant’s counsel proffered no explanation as to how he drew the inference that Juror No. 2, a homemaker who “lived” in Rancho Palos Verdes, was an “upper middle class” person, or why or how the supposed fact that she was an “upper middle class” person allegedly impacted appellant’s counsel’s analysis.
Appellant’s counsel then turned to what he could “recall.” He then recalled nothing. He proffered none of the purported justifications he would later present after retrieving his notes. Instead, appellant’s counsel simply indicated he did not have his notes. He retrieved them only after the court invited him to do so.
When appellant’s counsel began discussing the contents of his notes, he did not explicitly state they referred to the fact that Juror No. 2 was an upper middle class Caucasian woman. Moreover, appellant’s counsel’s notes apparently referred only indirectly to Juror No. 2. According to appellant’s counsel’s notes, Juror No. 2 might have been unfavorable to the defense simply because she was the wife of a self-employed person. Appellant’s counsel did not discuss the impact, if any, on his analysis of the fact that Juror No. 2 was a homemaker who had raised two daughters employed in various occupations.
Further, appellant’s counsel indicated the husband of Juror No. 2 was self-employed; therefore, he was an independent business person who might turn out to be unfavorable to the defense. Appellant’s counsel did not explain how the mere fact that a person was self-employed made them possibly unfavorable to the defense. It takes no imagination to conceive of occupations which could cause the persons so employed to be viewed as favorable to the defense, whether or not they were self-employed. Most defense counsel, e.g., would prefer as a juror a self-employed director of a social rehabilitation program to an employed police officer. Appellant’s counsel did not refer to the fact that Juror No. 2’s husband was a self-employed heating and air conditioning contractor, or explain the significance of that fact, if any, to appellant’s counsel’s analysis. The court did not err, in violation of appellant’s rights to a fair trial, a jury trial, an impartial jury, due process, or otherwise, by refusing to permit appellant to excuse Juror No. 2.
We note appellant’s counsel indicated he excused Juror No. 10 because she worked for the Department of Public Social Services. Appellant’s counsel did not explain how that fact impacted his analysis. We also note a juror’s employment with social services has caused some prosecutors to conclude such a juror would be defense-oriented. (See People v. Trevino (1997) 55 Cal.App.4th 396, 411-412.)
To the extent appellant argues (and it is not at all clear that he does) that, upon determining that his peremptory challenge as to Juror No. 2 was based on purposeful discrimination, the trial court was required to dismiss the entire venire and commence jury selection anew, we disagree. The trial court implicitly consented to the remedy of keeping Juror No. 2 on the jury. The prosecutor knew what was happening. When the court sought race-neutral explanations from appellant and wanted to know if there had been other Caucasian women in the jury box, it was the prosecutor who provided the information that Juror No. 10 was another Caucasian woman. The prosecutor voiced no objection to the trial court’s implied finding that a prima facie showing had been made, or to the court’s determination that appellant engaged in purposeful discrimination when attempting to excuse Juror No. 2. The trial court and prosecutor waived the usual remedy of outright dismissal of the remaining venire, and the court properly allowed Juror No. 2 to remain as a juror. (Cf. Willis, supra, 27 Cal.4th at pp. 813-814, 823-824; People v. Overby (2004) 124 Cal.App.4th 1237, 1242-1246.)
DISPOSITION
The judgment is affirmed.
We concur: CROSKEY, Acting P. J., ALDRICH, J.