Opinion
NOT TO BE PUBLISHED
APPEAL and PETITION for writ of habeas corpus from an order of the Superior Court of Los Angeles County, No. MA037412 Hayden Zackey, Judge.
Victoria H. Stafford, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Michael C. Keller and David A. Wildman, Deputy Attorneys General, for Plaintiff and Respondent.
EPSTEIN, P. J.
This is the second appeal from Leethiel Payne’s conviction of aggravated battery on a peace officer while in state prison. (Pen. Code, § 4501.1, subd. (a).) In our first unpublished decision, People v. Payne (July 21, 2009, B206395 [nonpub. opn.] (Payne I).), we issued a conditional remand directing the trial court to conduct a new hearing on appellant’s Wheeler/Batson motion. We also directed the trial court to exercise discretion in determining the proper amount of restitution fine under section 1202.4. On remand, the trial court denied the Wheeler/Batson motion, finding no prima facie showing was made, or alternatively that the rationale advanced by the prosecutor was race neutral and that the challenge was not based on discrimination. It made no order regarding the amount of the restitution fine.
Statutory references are to the Penal Code.
Batson v. Kentucky (1986) 476 U.S. 79 (Batson); People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler).
In this appeal and in his related petition for writ of habeas corpus, appellant now claims his absence from the hearing constituted a deprivation of his federal and state constitutional rights to due process and state statutory right to be present. He also contends the trial court erred in denying the Wheeler/Batson motion on the merits. Appellant and respondent agree that remand is necessary for reconsideration of the restitution fine.
We find no violation of appellant’s rights based on his absence from the Wheeler/Batson hearing. Appellant failed to make a prima facie case that the prosecutor excused the juror for discriminatory reasons. We agree that the trial court failed to exercise its discretion in setting the restitution fine and remand for that purpose.
FACTUAL AND PROCEDURAL SUMMARY
A factual summary of the battery committed by appellant was provided in our previous opinion in Payne I, and therefore, a brief summary will suffice here. Appellant was an inmate housed in the California state prison in Lancaster. When a correctional officer attempted to pass food to him through a port in the door, appellant threw feces and urine through the port, hitting the officer in the face and torso. Appellant was charged and convicted of aggravated battery of a peace officer while in state prison under section 4501.1, subdivision (a). Two prior strike allegations were found true. He was sentenced to a “Three Strikes” term of 25 years to life, consecutive to the term he was already serving. A restitution fine of $10,000 and a court security fee of $20 were imposed.
In Payne I, we concluded the trial court used the wrong standard in considering appellant’s Wheeler/Batson motion and remanded for a new hearing on that motion. We directed the trial court to determine whether appellant made a prima facie case that the prosecutor’s exercise of a challenge to Juror No. 20 was improper. If a prima facie case was found, the prosecutor was to be allowed to state her reasons for excusing Juror No. 20. If a race-neutral explanation was offered, the trial court was directed to evaluate that explanation and determine whether appellant had shown purposeful discrimination. If the trial court found the prosecutor exercised the challenges in a permissible fashion, it was directed to reinstate the judgment. If the court was unable to make this determination, it was directed to set the case for a new trial. (See People v. Kelly (2008) 162 Cal.App.4th 797, 799.) We also concluded the trial court had not recognized its discretion in setting the amount of the restitution fine and directed the trial court to determine the proper amount of the fine under section 1202.4 in the event that no new trial was ordered on the Wheeler/Batson issue.
On remand, the trial court held a hearing at which appellant was not present. The public defender who had represented appellant at trial had left the office and appellant was represented by Mr. Henderson, a deputy public defender. In the transcript of the hearing, Mr. Henderson states that he had an opportunity to review the file and the remittitur issued by our court. In a declaration in support of the petition for writ of habeas corpus, Mr. Henderson explained that the court told him it needed to “put some reasoning on the record for a case that had been reversed because it had, according to the court of appeals, used the wrong standard when evaluating whether there had been a ‘prima facie’ showing regarding the ‘Batson/Wheeler’ challenge. [¶] The court asked for me to stand in for the attorney of record.” Mr. Henderson reviewed the court file but did not have the original trial counsel’s file. Neither the record on appeal nor the writ petition indicates that Mr. Henderson reviewed the reporter’s transcript of the voir dire of Juror No. 20.
As the parties point out, the minute order of the hearing states that appellant was present, but the reporter’s transcript reflects the court’s statements that appellant was absent. We conclude the reporter’s transcript controls in these circumstances. (People v. Freitas (2009) 179 Cal.App.4th 747, 750, fn. 2.)
Applying the standard set out in People v. Davis (2009) 46 Cal.4th 539 (Davis), the trial court said: “[T]his court still does not find that a prima facie case has been shown. But just out of an abundance of caution, should the Court of Appeal find there is a prima facie case, I will now ask the People to state their [race] neutral reasons for excusing that juror.” Based on her notes, and the transcript of the court’s voir dire of juror No. 20, the prosecutor, Ms. Smith, said her concern was that the juror might have harbored some resentment toward law enforcement because she was the victim of an attempted rape 40 years earlier in which no perpetrator was apprehended. The victim and all the witnesses in this case were correctional or law enforcement officers. The prosecutor also noted that Juror No. 20 was the fourth juror to be excused, and that another African-American female served on the jury. Defense counsel submitted without argument.
The prosecutor stated she did not have a transcript of her voir dire of Juror No. 20. We have reviewed the voir dire and conclude, as does respondent, that the prosecutor did not direct any specific questions to Juror No. 20.
The court ruled: “Based upon the court’s recollection of voir dire with respect to that juror and based on Ms. Smith’s representations, even if the court were to have found the prima facie case, I do find that the justifications made by the People are [race] neutral justifications and the peremptory challenge used was not based on discrimination. That’s based on the totality of the circumstances. [¶] So, again, the Wheeler motion is denied.” The trial court indicated that no further action was required by our remittitur and reinstated the previously imposed sentence.
We relieved appellant of default and granted his application by petition for writ of habeas corpus for leave to file an appeal.
DISCUSSION
I
In Payne I, appellant argued the trial court applied the wrong standard in rejecting his claim that the prosecutor exercised a peremptory challenge to juror No. 20 for an improper purpose. Juror No. 20 was a single African-American woman with no children, who lived in Lancaster, and retired from teaching adults English as a second language. She had no prior jury experience. When asked whether she had any “yes” answers to the questions previously asked, Juror No. 20 acknowledged that she knew two Los Angeles Police Department officers. She also stated that, 40 years before, she had been the victim of an attack and attempted rape. Although the crime was reported to the police, no arrest was ever made. When asked whether there was anything about that experience that would affect her ability to be a fair and impartial juror, she said “‘No.’” She also said she knew someone who was arrested for drug possession, but would be able to set that aside and give each side a fair trial.
The next day the People exercised a peremptory challenge and excused Juror No. 20. The defense attorney asked to approach and said: “Your honor, I just wanted to make a Wheeler motion as to the dismissal of No. 20. I didn’t see anything that was negative towards her being a juror and I notice she’s one of the few black jurors we do have.” The court responded: “We do have juror No. 15 is an African-American female. She’s currently seated in seat No. 1. Juror No. 20 who was just excused appeared to be an African-American female as well, middle-aged, retired teacher who is single with no prior jury experience. Obviously that juror is a member of a recognizable group, an African-American. That was the first African-American that has been excused. So I don’t find that a reasonable inference has been raised that the excuse was made of race alone. So that’s denied.” The prosecutor did not volunteer any reasons for excusing Juror No. 20.
In Payne I, we observed: “The use of a peremptory challenge to excuse a single juror for racially discriminatory reasons is improper under Wheeler/Batson: ‘When a party makes a Wheeler motion, the issue is not whether there is a pattern of systematic exclusion; rather, the issue is whether a particular prospective juror has been challenged because of group bias. (Wheeler, supra, 22 Cal.3d at p. 280.)... Of course, a single discriminatory exclusion may also violate a defendant’s right to a representative jury.’ (People v. Avila (2006) 38 Cal.4th 491, 549.)” We concluded that the language used by the trial court was inconsistent with this rule: “As we have seen, the trial court emphasized that Juror No. 20 was the first African-American excused by the prosecutor and concluded: “So I don’t find that a reasonable inference has been raised that the excuse was made of race alone.” (Italics added.) The proper inquiry was whether “the sum of the proffered facts gives ‘rise to an inference of discriminatory purpose’” (Johnson v. California [(2005)] 545 U.S. [162, ] 169) even though only a single African-American juror had been excused. The trial court did not make this inquiry and therefore erred.”
A. Appellant’s Absence from Hearing
On remand, the trial court noted appellant’s absence from the hearing. It said that appellant did not need to be present “because all Wheeler motions are made outside the presence of the defendant so the jury does not hear. So I don’t see any harm in not having him present today.” Counsel for appellant said he concurred in that conclusion.
The Supreme Court recently revisited the right of a criminal defendant to be present in People v. Lynch (2010) 50 Cal.4th 693. “‘Under the Sixth Amendment, a defendant has the right to be personally present at any proceeding in which his appearance is necessary to prevent “interference with [his] opportunity for effective cross-examination.” (People v. Butler (2009) 46 Cal.4th 847, 861 (Butler), quoting Kentucky v. Stincer (1987) 482 U.S. 730, 744-745, fn. 17.) In addition, a defendant has a due process right ‘to be present at any stage of the criminal proceeding that is critical to its outcome if his presence would contribute to the fairness of the procedure.’ (Kentucky v. Stincer, at p. 745.) ‘Neither the state nor the federal Constitution, nor the statutory requirements of sections 977 and 1043, require the defendant’s personal appearance at proceedings where his presence bears no reasonable, substantial relation to his opportunity to defend the charges against him.’ (Butler, at p. 861.)” (Id. at pp. 745-746.) In People v. Cole (2004) 33 Cal.4th 1158, 1230-1231, the Supreme Court rejected a defendant’s argument that he had a right to be present during various proceedings, including bench conferences during voir dire.
Appellant relies on Gomez v. United States (1989) 490 U.S. 858, 873 for the proposition that voir dire is a critical stage of a criminal proceeding at which the defendant has a constitutional right to be present. The issue in Gomez was whether voir dire was a critical stage for the purpose of determining if denial of counsel at that stage gave rise to a presumption of prejudice. (Id. at p. 873.)
Gomez v. United States, supra, 490 U.S. at p. 872 was cited by the appellant in People v. Ervin (2000) 22 Cal.4th 48, to argue that a preliminary juror screening process conducted outside his presence violated his statutory and constitutional right to be personally present. Our Supreme Court rejected the argument, finding it had no merit. The Ervin court held that the appellant was barred from raising the issue on appeal because his counsel stipulated to the challenged procedure, as did counsel for appellant here. (People v. Ervin, supra, 22 Cal.4th at p. 73.) It also reasoned: “we have held that generally ‘the accused is not entitled to be personally present during proceedings which bear no reasonable, substantial relation to his opportunity to defend the charges against him, and the burden is upon him to demonstrate that his absence prejudiced his case or denied him a fair and impartial trial. [Citation.]’ (People v. Beardslee (1991) 53 Cal.3d 68, 103.)” (Id. at p. 74.) It concluded that the defendant’s presence at the jury screening discussions at issue “would have served little purpose.” (Ibid.) It also held that sections 977 and 1043 did not require the appellant’s presence or a written waiver unless the standard set out in Beardslee had been met. (Ibid.)
Here, appellant argues that his presence was essential because his defense counsel, Mr. Henderson, was new to the proceedings. He contends there was no indication that Mr. Henderson reviewed a transcript of voir dire or the file of the prior defense counsel. After the prosecutor stated her justification for excusing Juror No. 20, Mr. Henderson submitted without argument. Thus, defendant contends there was no one in the courtroom representing his interests who was familiar with the original voir dire proceedings. He argues that defense counsel familiar with the record would have argued that Juror No. 20 was a perfect juror for the prosecution and that the unresolved crime against her 40 years earlier was not a credible reason for dismissing her.
Respondent argues that appellant has failed to demonstrate how his presence would have been helpful to the proceeding because the purpose of the hearing was to apply the proper legal standard and allow the prosecutor to state her reasons for excusing Juror No. 20. Respondent cites People v. Kelly (2007) 42 Cal.4th 763 (Kelly), in which the defendant argued his right to be present was violated when various proceedings were held in his absence. One of these occasions involved argument and ruling on an objection to the prosecutor’s use of a peremptory challenge against an African-American prospective alternate juror. (Id. at p. 781.) The Kelly court concluded that the occasions on which the defendant was excluded involved legal questions of the type the court had held do not require the defendant’s personal presence. (Id. at p. 782.) It reasoned: “Defendant claims, in essence, that had he been present, he could have advised counsel to make better legal arguments. A similar claim could be made about any occasion involving legal issues. Nothing in this record suggests that defendant’s presence on these occasions would have made any difference.” (Ibid.)
Appellant argues that the unresolved attack on the juror 40 years earlier was not a credible basis for excusing the juror. His new counsel, although he was not present at trial, heard the prosecutor’s explanation and had an opportunity to make the argument appellant now urges but chose not to do so. Whether the record supports an inference that a prosecutor excused a juror on the basis of race is a legal question. (People v. Taylor (2010) 48 Cal.4th 574, 614.) As in Kelly, appellant has failed to demonstrate how his presence would have made a difference on this legal issue. A juror’s negative experience with the criminal justice system is a valid basis for exercising a peremptory challenge. (People v. Lomax (2010) 49 Cal.4th 530, 574.) Under the federal and state constitutional standards and statutory rules we have summarized, we find no violation of appellant’s rights because he was not present at the hearing on remand. We deny the petition for writ of habeas corpus as well for the same reason.
B. Denial of Wheeler/Batson Motion
“Both the United States and the California Constitutions prohibit the exercise of peremptory challenges solely because of group bias. (Batson v. Kentucky (1986) 476 U.S. 79 (Batson); People v. Wheeler (1978) 22 Cal.3d 258.)” (People v. Johnson (2006) 38 Cal.4th 1096, 1098.) Under Wheeler, we presume a prosecutor uses peremptory challenges in a constitutional manner. (People v. Ayala (2000) 24 Cal.4th 243, 260.) In Johnson v. California, supra, 545 U.S. 162, the Supreme Court reiterated the steps of a Batson analysis: “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.’ [Citations.] 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.]” (Id. at p. 168, fn. omitted; see also People v. Hawthorne (2009) 46 Cal.4th 67, 78.) It held that “a defendant satisfies the requirements of Batson’s first step by producing evidence sufficient to permit the trial judge to draw an inference that discrimination has occurred.” (Johnson v. California, supra, at p. 170.)
We exercise independent review to determine whether the record supports an inference that a prosecutor excused a juror on the basis of race. (People v. Taylor, supra, 48 Cal.4th at p. 614; People v. Hawthorne, supra, 46 Cal.4th at p. 79.) “To make a prima facie showing of group bias, ‘the defendant must show that under the totality of the circumstances, it is reasonable to infer discriminatory intent.’ [Citations.]” (People v. Davis, supra, 46 Cal.4th 539, 582.) In Davis, the Supreme Court reiterated the types of evidence relevant to a prima facie showing, including whether the opponent has struck all, most, or a disproportionate number, of members of the indentified group; whether the excused jurors share only their membership in the group and are otherwise heterogeneous; and whether the jurors were subjected to only desultory voir dire. (Id. at p. 583.)
Here, defense counsel based her Wheeler/Batson motion on her conclusion that nothing negative about Juror No. 20 had been revealed and that “she’s one of the few black jurors we do have.” The judge responded that another African-American female (Juror No. 15) was on the panel at the time; that juror ultimately served on the jury which convicted appellant. The record is silent as to the exact number of other African-American prospective jurors remaining on the panel when Juror No. 20 was excused.
Appellant argues he satisfied the test for the first stage of the Wheeler/Batson inquiry, a prima facie showing of discriminatory purpose in excusing the juror in question. “‘“‘[A] defendant satisfies the requirements of Batson’s first step by producing evidence sufficient to permit the trial judge to draw an inference that discrimination has occurred.’ [Citation.]”’” (People v. Vines (2011) 51 Cal.4th 830, 848.) In making this determination, “‘“the trial court ‘must make “a sincere and reasoned attempt to evaluate the prosecutor’s explanation in light of the circumstances of the case as then known, his knowledge of trial techniques, and his observations about the manner in which the prosecutor has examined members of the venire and has exercised challenges for cause or peremptorily....” [Citation.]”’ (People v. Reyonoso (2003) 31 Cal.4th 903, 919.) “[T]he trial court is not required to make specific or detailed comments for the record to justify every instance in which a prosecutor’s race-neutral reason for exercising a peremptory challenge is being accepted by the court as genuine” (Ibid.) Inquiry by the trial court is not even required.’” (People v. Stanley (2006) 39 Cal.4th 913, 936, quoting People v. Reynoso (2003) 31 Cal.4th 903, 919-920.)
Appellant challenges the credibility of the explanation given by the prosecutor: possible resentment harbored by Juror No. 20 because the assailant in her attempted rape 40 years earlier had not been apprehended. He cites the juror’s statement in voir dire that this incident would not impact her ability to be fair and impartial. He relies on the prosecutor’s failure to address any questions to Juror No. 20, although she questioned other prospective jurors. In addition, appellant asserts the prosecutor failed to question Juror No. 20 to determine whether any possible resentment would extend to all law enforcement officers. He claims these concerns could have been clarified by additional voir dire. Appellant argues that the prosecutor’s failure to voir dire Juror No. 20 is evidence that the purported concern regarding resentment of law enforcement was pretextual. He describes Juror No. 20 as “otherwise a perfect juror from the prosecutor’s perspective” and says this supports his argument that the reason given was pretextual. He contends that the totality of the circumstances was sufficient to raise an inference that Juror No. 20 was excused for a discriminatory purpose.
We disagree. Defense counsel did not argue factors regarding the other jurors excused to support her motion, except to point out that Juror No. 20 was the first African-American excused. We know that another African-American woman served on the jury. In People v. Hawthorne, supra, 46 Cal.4th 67, the Supreme Court relied on race-neutral reasons for excusals to “[confirm] the trial court’s finding that there was insufficient evidence to permit the court to draw an inference that discrimination ha[s] occurred. (Fn. omitted.)” (Id. at p. 80.) As in People v. Taylor, supra, 48 Cal.4th 574, appellant’s showing of discriminatory purpose was meager. His counsel merely pointed out that Juror No. 20 was African-American, without referring specifically to her other answers or pointing to any other evidence that would support an inference of discrimination. In Taylor, defense counsel pointed out that the juror in question was African-American and submitted on that question alone. Another African-American woman was seated on the jury. The Supreme Court held that it was impossible to draw an inference of discrimination from that fact alone. (Id. at pp. 614-615.)
Here, on remand, the prosecutor gave a race-neutral explanation for excusing Juror No. 20; the possibility that the juror harbored resentment toward law enforcement because no perpetrator had been apprehended and prosecuted in the attempted rape 40 years before. In People v. Lomax, supra, 49 Cal.4th at p. 574, a prospective juror’s negative experience with the criminal justice system was found a valid basis for exercising a peremptory challenge based on long-standing authority. Thus, the reason advanced by the prosecutor for excusing Juror No. 20 has been recognized as a valid basis for exercising a peremptory challenge. Our independent review of the record does not provide any basis for inferring that Juror No. 20 was excused for discriminatory reasons. No prima facie case of discrimination was made. (See People v. Taylor, supra, 48 Cal.4th at pp. 615-616.)
II
In Payne I we remanded the case for the court to recognize and exercise its discretion in setting the appropriate restitution fine under section 1202.4. The trial court failed to address this issue in the hearing on remand. We now remand the case again for the limited purpose of setting the appropriate restitution fine.
DISPOSITION
The matter is remanded for an exercise of the trial court’s discretion in setting the appropriate restitution fine under section 1202.4. The order denying appellant’s Wheeler/Batson motion is affirmed and in all other respects the judgment is affirmed. The petition for writ of habeas corpus is denied.
We concur: WILLHITE, J. SUZUKAWA, J.