Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Kern County. Super. Ct. No. BF113101C Richard J. Oberholzer, Judge.
Carol A. Navone, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Brian Alvarez, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Kane, J.
Defendant Daniel Pena was convicted of second degree murder for the death of Mario Maya, Jr. On appeal, he contends (1) the trial court erred by denying his Wheeler/Batson motion; (2) the trial court improperly discouraged the jurors from exercising their right to have testimony read back; (3) the reasonable doubt instructions violated his due process rights; and (4) he is entitled to additional custody credits. We will affirm the judgment and direct the superior court to modify the abstract of judgment by adding 11 days of custody credit.
PROCEDURAL SUMMARY
On April 3, 2006, the Kern County District Attorney charged defendant (Daniel) and codefendants Rowland Pena (Rowland) and Jessie Meza with murder (Pen. Code, § 187, subd. (a); count 1) and residential burglary (§ 460, subd. (a); count 2). Daniel was tried jointly with Rowland. Count 2 was dismissed in the interest of justice, but the jury found Daniel guilty of second degree murder on count 1. The court sentenced Daniel to 15 years to life in prison.
All statutory references are to the Penal Code unless otherwise noted.
Jessie Meza negotiated a plea.
FACTS
On the evening of December 27, 2005, Daniel and his cohort were beat up in a fight. They immediately went to get Daniel’s brother, Rowland, and returned to the neighborhood for retribution. Apparently believing Mario Maya, Jr. had been involved in the earlier fight, they went to his house. Mario’s uncle, Alejandro, and Alejandro’s stepson were in the front yard. Both Daniel and Rowland were carrying stick-and-knife weapons. Daniel waved the weapon, then he and Rowland used the weapons to break Mario’s window and fight Mario and Alejandro through the window. Mario came into the front yard and fought with Daniel. During the struggle, Daniel stabbed Mario repeatedly. As that struggle occurred, Mario’s younger brother, Jesse, approached the scene with a kitchen knife. Rowland stopped him when he came up to Jesse and threatened him with the stick-and-knife weapon. But just as Rowland prepared to swing the weapon, Jesse stabbed him with the kitchen knife. As others approached, Jesse ran away. Mario’s aunt, Elizabeth, was hitting Daniel with a mop and broom, trying to remove him from Mario. Rowland approached her and told her Mario had “jumped” his brother. When she told Rowland that Mario had not jumped anyone, he looked shocked. He pulled Daniel off Mario and they ran to their vehicle and sped away. The entire incident at the Maya residence lasted only a few minutes. Mario died at the hospital that evening from stab wounds. He was 20 years old.
DISCUSSION
I. Wheeler/Batson Motion
Daniel contends the trial court erred by not finding a prima facie case of discrimination in the prosecutor’s use of peremptory challenges against Hispanic prospective jurors. When defense counsel raised the motion below, he claimed the prosecutor had excused three Hispanic prospective jurors. On appeal, Daniel has apparently limited his argument to the excusal of a single Hispanic prospective juror, Ms. M., who he argues would have been an acceptable and favorable juror for the prosecution. We agree with the trial court that Daniel failed to raise an inference of discrimination.
The use of peremptory challenges to excuse prospective jurors based on race violates the federal and state Constitutions. (Batson v. Kentucky (1986) 476 U.S. 79, 97; People v. Wheeler (1978) 22 Cal.3d 258, 276-277.) “Such a use of peremptories by the prosecution ‘violates the right of a criminal defendant to trial by a jury drawn from a representative cross-section of the community under article I, section 16 of the California Constitution. [Citations.] Such a practice also violates the defendant’s right to equal protection under the Fourteenth Amendment to the United States Constitution.’ [Citation.]” (People v. Bonilla (2007) 41 Cal.4th 313, 341.) There is a rebuttable presumption that a peremptory challenge is being exercised properly, and the opposing party bears the burden to demonstrate impermissible discrimination. (Purkett v. Elem (1995) 514 U.S. 765, 768; People v. Bonilla, supra, at p. 341.)
The defendant must first “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 ... discrimination.’ [Citation.]” (Johnson v. California (2005) 545 U.S. 162, 168, fn. omitted.) Moreover, “[Johnson] explain[ed] 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.’ [Citation.] The defendant having shown membership in a cognizable class, and keeping in mind ‘“that peremptory challenges constitute a jury selection practice that permits ‘those to discriminate who are of a mind to discriminate,’”’ the defendant ‘“must show that these facts and any other relevant circumstances raise an inference that the prosecutor used that practice to exclude the veniremen from the petit jury on account of their race.”’ [Citation.]” (People v. Cornwell (2005) 37 Cal.4th 50, 67.)
In Johnson v. California, supra, 545 U.S. 162, the United States Supreme Court reversed People v. Johnson (2003) 30 Cal.4th 1302, and concluded that California courts had been applying too rigorous a standard in deciding whether defendants had made out a prima facie case of discrimination. (See Johnson v. California, supra, 545 U.S. at pp. 166-168 [holding the requirement that a defendant show a “strong likelihood,” rather than a “reasonable inference,” of discrimination was inconsistent with Batson and the federal Constitution].)
“The three-step Batson analysis, however, is not so mechanistic that the trial court must proceed through each discrete step in ritual fashion. Thus, the trial court may invite the prosecutor to state race-neutral reasons for the challenged strikes before announcing its finding on whether a defendant met the first step of the Batson test by making out a prima facie case of discrimination.” (People v. Adanandus (2007) 157 Cal.App.4th 496, 500-501.) Indeed, “it is the better practice for the trial court to have the prosecution put on the record its race-neutral explanation for any contested peremptory challenge, even when the trial court may ultimately conclude no prima facie case has been made out. This may assist the trial court in evaluating the challenge and will certainly assist reviewing courts in fairly assessing whether any constitutional violation has been established.” (People v. Bonilla, supra, 41 Cal.4th at p. 343, fn. 13; see also People v. Mayfield (1997) 14 Cal.4th 668, 723-724 [even where no prima facie case found, court may properly consider reasons actually given by the prosecutor].)
“[W]here the ‘“‘trial court denies a Wheeler motion without finding a prima facie case of group bias the reviewing court considers the entire record of voir dire. [Citations.] As with other findings of fact, we examine the record for evidence to support the trial court’s ruling. Because Wheeler motions call upon trial judges’ personal observations, we view their rulings with “considerable deference” on appeal. [Citations.] If the record “suggests grounds upon which the prosecutor might reasonably have challenged” the jurors in question, we affirm.’”’ [Citation.]” (People v. Adanandus, supra, 157 Cal.App.4th at p. 501, citing People v. Crittenden (1994) 9 Cal.4th 83, 116-117; People v. Bonilla, supra, 41 Cal.4th at p. 341 [“we review the trial court’s denial of a Wheeler/Batson motion deferentially, considering only whether substantial evidence supports its conclusions”].)
In this case, when defense counsel made a Wheeler/Batson motion during jury selection, the following occurred:
“[DEFENSE COUNSEL]: Thank you, Your Honor. I’ll make a motion for Batson Wheeler for a mistrial.
“The People have in the jury selection process -- from eight challenges, from my direct notes, excused three of what I believed to be Hispanic jurors, Mr. [B.], Mr. [G.] and the last one was [Ms. M.]
“Based on what was related to us by these prospective jurors, at least the last one, I would say that there wasn’t anything that would disqualify her other than her ethnic background. I think there is an inference that the People are selectively excluding Hispanic jurors, and I’ll submit it with those remarks.
“THE COURT: Ms. [Prosecutor]?
“[THE PROSECUTOR]: Your Honor, I don’t -- first of all, I don’t think Mr. [G.] was Hispanic.
“THE COURT: I don’t think Mr. [G.] was Hispanic either. You certainly didn’t question ethnic background. I’m not going to consider Mr. [G.] Hispanic. There is no indication to the Court he’s Hispanic.
“[DEFENSE COUNSEL]: I’ll submit it.
“[THE PROSECUTOR]: Further, I don’t think [defense counsel] has met his burden for the Court to justify why I excused the other two … possible Hispanic jurors.
“THE COURT: I would concur. The motion is denied. Bring the jury back in, please.”
On appeal, Daniel correctly concedes the prosecutor’s excusal of Mr. B., a young man who reported having many unwarranted contacts with police due to his long hair, did not raise an inference of discrimination. He also implicitly concedes the excusal of Mr. G. did not raise an inference of discrimination. Instead, Daniel focuses on the peremptory challenge of Ms. M., arguing that her excusal alone was enough to raise an inference of discrimination. We conclude the record as a whole fails to support a reasonable inference that the prosecutor’s peremptory challenges reflected the discriminatory purpose of eliminating Hispanics from the jury.
In making this assessment, we must evaluate the totality of the relevant circumstances surrounding the use of the peremptory challenge against Ms. M. (See Johnson v. California, supra, 545 U.S. at p. 168.) First, the circumstance that the prosecutor challenged Ms. M., one prospective juror who was Hispanic, did not in itself support an inference of bias. (People v. Cornwell, supra, 37 Cal.4th at pp. 69-70 [“circumstance that the prosecutor challenged one out of two African-American prospective jurors does not support an inference of bias”]; People v. Bonilla, supra, 41 Cal.4th at pp. 342-343 [exclusion of a single prospective juror may be the product of improper group bias, but, practically, exclusion of one or two jurors rarely suggests a pattern of impermissible exclusion].) Second, the circumstance that Ms. M. seemed to possess characteristics making her favorable to the prosecution also did not necessarily raise an inference of bias. (See People v. Turner (1994) 8 Cal.4th 137, 165 [prosecutor may act on a hunch or apparently arbitrarily, as long as the peremptory challenge is not based on group bias], disapproved on another point in People v. Griffin (2004) 33 Cal.4th 536, 555, fn. 5 ]; People v. Cornwell, supra, 37 Cal.4th at p. 69 [circumstance that juror was not subject to exclusion for cause certainly did not support inference that the exercise of a peremptory challenge against her was motivated by group bias].)
In Bonilla, the court stated: “It is true the prosecution used peremptories to challenge both African-Americans in the pool, but ‘the small absolute size of this sample makes drawing an inference of discrimination from this fact alone impossible. “[E]ven the exclusion of a single prospective juror may be the product of an improper group bias. As a practical matter, however, the challenge of one or two jurors can rarely suggest a pattern of impermissible exclusion.”’ [Citations.]” (People v. Bonilla, supra, 41 Cal.4th at pp. 342-343, fn. omitted.) “‘[T]he ultimate issue to be addressed on a Wheeler-Batson motion “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.” [Citation.] But in drawing an inference of discrimination from the fact one party has excused “most or all” members of a cognizable group’ -- as Bonilla asks the court to do here -- ‘a court finding a prima facie case is necessarily relying on an apparent pattern in the party’s challenges.’ [Citation.] Such a pattern will be difficult to discern when the number of challenges is extremely small.” (Id. at p. 343, fn. 12.) We note that the record in this case fails to reflect the number of prospective Hispanic jurors remaining on the panel, or whether any of the jurors ultimately selected were Hispanic.
Finally, any possibility that Ms. M.’s excusal was motivated by race was eliminated by her own statements regarding her hardship and reluctance to serve. Ms. M. was taking courses to gain admission to nursing school. Later, when the prospective jurors were asked if any of them felt they could not serve on the jury due to a reason beyond an inconvenience or minor hardship, Ms. M. raised her hand and explained that she had a midterm exam the following Thursday morning, a second midterm the same night, then a state medical assistant certification exam the next morning at 7:30 a.m. She said she would fail both classes and have to pay $155 to take the state exam if she missed the exams. The court stated it would arrange for her to make her 7:30 a.m. state exam on Friday, then encouraged her to speak to her instructors about rescheduling her midterms.
In our opinion, despite Ms. M.’s other favorable traits as a prospective juror, any competent prosecutor would have considered excusing Ms. M. for this race-neutral reason. If Ms. M. could not reschedule her midterm exams, she would have been understandably distracted, even angered, by the loss of her investment of time and money in the courses, which she had been forced to fail, and by the prospect of having to retake them. And even if she succeeded in rescheduling the exams, she likely would have been distracted by her inability to study and prepare for them. Any reasonable prosecutor would want to avoid a distracted and possibly resentful juror. (See People v. Garceau (1993) 6 Cal.4th 140, 172 [reluctance to serve due to hardship], overruled on another point in People v. Yeoman (2003) 31 Cal.4th 93, 117-118.)
We recognize that Ms. M. generally wanted to serve as a juror, but her discussion of this hardship clearly established that she was reluctant to do so for these reasons.
We find nothing in the record to support an inference that the prosecutor discriminated against Ms. M. because of her race. In addition to the paucity of defense counsel’s reasons for a prima facie case, our independent review of the voir dire also reveals no inference of discrimination on the part of the prosecutor.
II. Instruction Regarding Readback of Testimony
Daniel contends the trial court engaged in improper jury coercion by discouraging the jurors from exercising their right under section 1138 to have testimony read back to them. We reject this contention.
Section 1138 provides: “After the jury have retired for deliberation, if there be any disagreement between them as to the testimony, or if they desire to be informed on any point of law arising in the case, they must require the officer to conduct them into court. Upon being brought into court, the information required must be given in the presence of, or after notice to, the prosecuting attorney, and the defendant or his counsel, or after they have been called.”
Prior to opening statements and the presentation of evidence, the court instructed the jury regarding notetaking and readback of testimony, in relevant part, as follows:
“All of you have been given notepads and pencils. I’ll tell you a little bit about the use of those. You may take notes during this trial…. You’ll be able to use notes during your deliberations and take them back to the jury room for use in your deliberations. [¶] A word of caution; you may take notes; however, you should not permit note taking to distract you from the ongoing proceedings. Remember, you are the judges of the believability of the witnesses. Further, notes are only an aid to memory and should not take precedence over independent recollection. And the juror who does not take notes should rely upon his or her independent recollection of the evidence and not be influenced by the fact that other jurors do take notes.
“Notes are for the note-taker’s own personal use in refreshing his or her recollection of the evidence. That means you put on that pad whatever helps refresh your recollection -- if it’s words, numbers, or pictures -- because you’re the only one that can consult with it at the end of the trial. If you get back in the jury room, you find somebody wasn’t paying attention, you can’t pull out your pad and say, ‘I have it written right here,’ because your pads are not official record. The official record is the reporter’s transcript.
“If somebody wasn’t paying attention during the trial, you have to ask for a readback. It takes us 45 minutes to set up the courtroom for readback. And the reason it takes so long is that while you’re back there deliberating, I will be starting a new trial. After that we’ll have new parties in here and … I will be using the same reporter. And it’s not going to be this reporter because this reporter is about to leave us, and I’m going to [be] getting another reporter Monday. We’ll have a new reporter starting Monday.
“I will be using that reporter then straight through on the next trial also. So if you need readback, we have to stop that proceeding, clear the courtroom of those people, those jurors. We’ve got to bring these parties back, bring you back in the courtroom, and she has to look it up in her notes, find out where it was -- where it was you need the readback, and the reporter will take the witness stand and read it back to you.
“Now, the reason I mention that to you is we don’t like to have to do readback because it’s kind of disruptive. But the only way that we can be assured of not doing that is that you pay very close attention during the trial. I can tell you the trial is going to go one or two or three days, and this one undoubtedly is going to do that.
“There are boring parts to this trial. It’s not like a TV program. They give you only the interesting stuff. So it gets boring, and sometimes you lose a little bit of concentration. I always like to tell jurors when you find yourself drifting off a little bit, start taking notes. It will kind of wake you up, get you back into the thing again. Because sure enough, when we relax a little bit, something will come in that somebody will think important and you’ll get back in the jury room and say, ‘Gee, I don’t remember that.’ So I’ll just give you that to help you out a little bit. It will speed up your deliberations also if you don’t have to ask for readback.”
At the conclusion of the trial, the court instructed the jury with CALCRIM No. 202, as follows:
“You have been given notebooks and may have taken notes during the trial. Please do not remove your notes from the jury room. You may use your notes during deliberations but only to remind yourself of what happened during the trial. Remember, your notes may be inaccurate or incomplete. If there is a disagreement about what actually happened at the trial, you may ask the court reporter to read back the relevant parts of the testimony to assist you. It is the testimony that must guide your deliberations and not your notes.”
The jury did not request any readbacks of testimony during its deliberations.
“Pursuant to section 1138, the jury has a right to rehear testimony and instructions on request during its deliberations. [Citations.] Although the primary concern of section 1138 is the jury’s right to be apprised of the evidence, a violation of the statutory mandate implicates a defendant’s right to a fair trial conducted ‘“substantially [in] accord[ance with] law.”’ [Citations.]” (People v. Frye (1998) 18 Cal.4th 894, 1007.)
Here, the court accurately informed the jury that readbacks of testimony involve delay and can disrupt other court proceedings; it never indicated that requests for readbacks would not be honored. (Cf. People v. Hillhouse (2002) 27 Cal.4th 469, 506 [merely informing the jury of the time it may take for rehearing testimony is not impermissible jury coercion].) A fair reading of the court’s comments is that the court was recommending notetaking as one way to help individual jurors keep their attention engaged during the trial. Although the court suggested that readbacks necessitated solely by juror inattention might be avoided by notetaking, the court still made clear that if the jurors needed a readback, they would be accommodated. Moreover, at the end of trial, the court clearly informed the jurors, this time without mention of delay or disruption, that they should ask for a readback and rely on the testimony rather than their notes in case of a disagreement. Daniel has not shown the court’s comments here amounted to impermissible jury coercion or otherwise violated the jury’s or Daniel’s right to have the jury provided with readbacks of testimony on request.
III. CALCRIM Nos. 220 and 222
Daniel argues CALCRIM No. 220, the reasonable doubt instruction, and CALCRIM No. 222 violated his due process rights because they prevented the jurors from considering the lack of evidence, rather than the evidence received at trial, in determining whether reasonable doubt existed as to his guilt.
The jury was instructed with CALCRIM No. 220, as follows: “The fact that a criminal charge has been filed against the defendant is not evidence that the charge is true. You must not be biased against the defendants just because they have been arrested, charged with the crime, or brought to trial. The defendant in the criminal case is presumed to be innocent. This presumption requires that the People prove each element of the crime and special allegation beyond a reasonable doubt. “Whenever I tell you the People must prove something, I mean they must prove it beyond a reasonable doubt, unless I specifically tell you otherwise. Proof beyond a reasonable doubt is proof that leaves you with an abiding conviction the charge is true. The evidence need not eliminate all possible doubt because everything in life is open to some possible or imaginary doubt. “In deciding whether the People have proved their case beyond a reasonable doubt, you must impartially compare and consider all the evidence that was received throughout the entire trial. Unless the evidence proves the defendant[s’] guilt beyond a reasonable doubt, they are entitled to an acquittal, and you must find them not guilty.” (Italics added.) The jury was then instructed with CALCRIM No. 222, which provided in part: “You must use only the evidence that was presented in the courtroom, the evidence of sworn testimony of witnesses, exhibits admitted into evidence, and anything else I told you to consider as evidence.”
In determining the correctness of jury instructions, we consider the instructions as a whole. (People v. Carrasco (2006) 137 Cal.App.4th 1050, 1061.) An instruction can be found to be ambiguous or misleading only if, in the context of the entire charge, there is a reasonable likelihood the jury misconstrued or misapplied its words. (People v. Frye, supra, 18 Cal.4th at p. 957.)
Reasonable doubt may arise from the lack of evidence at trial as well as from the evidence presented. (People v. Simpson (1954) 43 Cal.2d 553, 566.) The plain language of CALCRIM No. 220 does not instruct otherwise. The only reasonable understanding of the language, “[u]nless the evidence proves the defendant guilty beyond a reasonable doubt, he is entitled to an acquittal and you must find him not guilty,” is that a lack of evidence could lead to reasonable doubt. Contrary to Daniel’s claim, CALCRIM No. 220 did not tell the jury reasonable doubt must arise from the evidence. The jury was likely “to understand by this instruction the almost self-evident principle that the determination of defendant’s culpability beyond a reasonable doubt ... must be based on a review of the evidence presented.” (People v. Hawkins (1995) 10 Cal.4th 920, 963, abrogated on another ground in People v. Lasko (2000) 23 Cal.4th 101, 110; see also People v. Rios (2007) 151 Cal.App.4th 1154, 1157.)
Daniel relies on Simpson and on People v. McCullough (1979) 100 Cal.App.3d 169, which cites Simpson. These cases are inapposite. In Simpson, the defendant argued that the trial court’s instruction on reasonable doubt had shifted the burden to him to prove his innocence. The trial court instructed: “‘The term “reasonable doubt,” as used in these instructions, means a doubt which has some good reason for its existence arising out of evidence in the case; such doubt as you are able to find a reason for in the evidence.’” (People v. Simpson, supra, 43 Cal.2d at p. 565, fns. omitted.) The court held this language was “not necessary” and “could have been confusing” because “reasonable doubt ... may well grow out of the lack of evidence in the case as well as the evidence adduced.” (Id. at p. 566.) Similarly, in McCullough, the court determined a supplemental instruction stating the doubt must arise from the evidence to be erroneous. (People v. McCullough, supra, at p. 182.)
Here, unlike in Simpson or McCullough, the instructions did not tell the jury the reasonable doubt had to arise out of the evidence in the case. They merely said the jury was to consider all of the evidence presented. We see no error.
IV. Custody Credit
Daniel contends he is entitled to receive an additional 11 days of custody credit. It appears Daniel was sentenced on August 17, 2006, and the restitution hearing was held on August 28, 2006. Accordingly, the superior court is ordered to amend the abstract of judgment to reflect 11 additional days of custody credits. (§ 2900.5.)
We take judicial notice of the reporter’s transcript of the restitution hearing, dated August 28, 2006.
DISPOSITION
The judgment is affirmed with directions to the superior court clerk to (1) prepare an amended abstract of judgment reflecting 11 additional days of custody credit, and (2) forward it to the Department of Corrections.
WE CONCUR: Vartabedian, Acting P.J., Gomes, J.