Opinion
C074388
08-29-2017
THE PEOPLE, Plaintiff and Respondent, v. RICO RILEY, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 12F01244)
Defendant Rico Riley committed sexual offenses against a victim in her apartment. Convicted of those crimes and sentenced to long, consecutive determinate and indeterminate terms, defendant appeals.
Defendant contends that the trial court erred by denying his motion challenging the prosecutor's use of a peremptory challenge to excuse an African-American prospective juror. In connection with that contention, defendant argues that his due process rights have been violated because the juror questionnaires for the prospective jurors not selected to serve are not available to add to the record. We conclude that the trial court properly denied defendant's motion challenging the use of peremptory challenges because there was no prima facie showing that the prosecution exercised a challenge based on impermissible criteria. And we conclude that the unavailability of juror questionnaires does not violate defendant's due process rights because he is not entitled to a comparative juror analysis.
Defendant also contends that he is entitled to remand for resentencing because the trial court did not know it could impose concurrent sentencing for some of the counts. We conclude that the record does not support defendant's claim that the trial court did not know it could impose concurrent sentencing.
BACKGROUND
The facts of defendant's crimes against the victim have little relevance to the claims defendant makes on appeal. We therefore provide only a summary.
Around midnight on December 6, 2011, defendant and his girlfriend Miriam Beard arrived at the victim's apartment. Beard was the victim's friend; they had a casual, romantic relationship. After the victim turned down defendant's and Beard's invitation to join in an orgy and tried to leave her apartment, defendant tied her up and gagged her and committed multiple sexual crimes against her. He inserted a douche bottle in her anus twice, inserted his fingers in her anus and vagina, and inserted his penis in her anus. Later, when the victim thought defendant and Miriam had left, she managed to free herself from the restraints, but defendant reappeared and raped her.
A jury convicted defendant of three counts of forcible sexual penetration with a foreign object (Pen. Code, § 289, subd. (a)(1) ; counts one, two, and five); two counts of sodomy (§ 286, subd. (c)(2); counts three and four); and one count of rape (§ 261, subd (a)(2); count six). The jury also found true the allegation that defendant bound the victim as to all counts except the rape. (§ 667.61, subd. (e)(5).)
Hereafter, unspecified code citations are to the Penal Code.
The trial court found true a prior serious felony conviction allegation (§ 667, subd. (a)) and sentenced defendant, under the "Three Strikes" law, to an aggregate determinate term of 46 years and a consecutive aggregate indeterminate term of 150 years to life. Additional sentencing details are provided in part II of the Discussion.
DISCUSSION
I
Peremptory Challenge
Defendant contends that the trial court erred by denying his motion challenging the prosecution's use of peremptory challenges to excuse an African-American prospective juror based solely on her race. The contention is without merit because the record does not support an inference the prosecutor exercised the peremptory challenge based solely on the prospective juror's race.
A. Legal Background
The equal protection clause of the Fourteenth Amendment forbids a prosecutor from challenging a potential juror based on the juror's race or assumptions about how the juror's race may affect the juror's treatment of the case. (Batson v. Kentucky (1986) 476 U.S. 79, 89 [90 L.Ed.2d 79, 82-83] (Batson); see People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler) [violation of state constitutional right to have a jury selected from a fair cross-section of the community], overruled in part on another ground in Johnson v. California (2005) 545 U.S. 162, 165 [162 L.Ed.2d 129, 136].)
"At issue in a Batson/Wheeler motion is whether any specific prospective juror is challenged on account of bias against an identifiable group distinguished on racial, religious, ethnic, or similar grounds. [Citation.] Exclusion of even one prospective juror for reasons impermissible under Batson and Wheeler constitutes structural error, requiring reversal. [Citation.]" (People v. Gutierrez (2017) 2 Cal.5th 1150, 1158 (Gutierrez).)
"A three-step procedure applies at trial when a defendant alleges discriminatory use of peremptory challenges. First, the defendant must make a prima facie showing that the prosecution exercised a challenge based on impermissible criteria. Second, if the trial court finds a prima facie case, then the prosecution must offer nondiscriminatory reasons for the challenge. Third, the trial court must determine whether the prosecution's offered justification is credible and whether, in light of all relevant circumstances, the defendant has shown purposeful race discrimination. [Citation.]" (People v. Manibusan (2013) 58 Cal.4th 40, 75; see Batson, supra, 476 U.S. at pp. 94, 97-98.) At the third stage, the burden is on the defendant to show it was more likely than not that the challenge was racially motivated. (See People v. Manibusan, supra, at p. 75.)
In this case, only the first step of the Batson/Wheeler inquiry is relevant because, as discussed below, defendant did not make a prima facie showing that the prosecutor exercised a peremptory challenge based on impermissible criteria.
B. Procedural Background
During voir dire of the jurors, prospective juror Danica D., who is African-American, was questioned individually about several matters. She said she "majored in criminal justice . . . , and I was to do youth corrections. And then no, so I just wanted to try something different within my field to see what I [] like." She was working in a women's shelter. She had cousins who committed vandalism in their early teens approximately 10 years prior. Concerning whether they were treated fairly in the justice system, she said: "Uh, I don't know. We were kind of young, so they I thought got a fair punishment, but I don't know." Her aunt was a victim of domestic violence but was still in the relationship. When asked how she felt about that, Danica D. said, "Did you mean dumb[?] She's a drama queen."
After the prosecution used peremptory challenges on two of the three African-American potential jurors, including prospective juror Danica D., defendant made a motion challenging the prosecutor's use of peremptory challenges based on race, and the following proceedings took place outside the presence of the jury venire:
"[Defense counsel:] The concern being that [defendant] is an African-American, the two potential jurors that were just excused this afternoon by the prosecutor, both of them being African-American, there is only one other potential African-American currently in the possible jury pool that may be seated.
"And [Danica D.], who was just excused by the prosecution, had indicated that there was a fair punishment for her cousin[s] who had been convicted of a vandalism. She had a criminal justice major. It looks like, if I recall her testimony, I believe it was from Sac City. I may not have noted that correctly. She works in a woman's shelter, but she basically said she does that to explore the options after she realized that juvenile justice was not her area, and I had concerns about the ethnicity of them being excused.
"THE COURT: The first issue is whether there is any sort of systematic exclusion taking place."
Later, after defense counsel identified the two African-American women (Kelly F. and Danica D.) challenged peremptorily by the prosecution, the following proceedings took place:
"THE COURT: [Kelly F.] was the one that indicated she had difficulty following the instructions as it relates to a single witness.
"[Defense counsel]: She indicated she may have difficulty, but she did not indicate that she would be unable to do so.
"THE COURT: Well, that's why a cause challenge wouldn't have been granted. But that's a different issue than whether there is a[] systematic exclusion of African-Americans and whether there is a prima facie case.
"[Defense counsel]: And I think perhaps [Kelly F.] is a reasonable exclusion.
"But then when it rises to the next African-American woman who has several factors that would typically be perceived to be in the district attorney's favor to exclude, starts to call into question whether it's based on ethnicity.
"THE COURT: I don't find there to be a systematic exclusion at this point, so the motion will be denied without asking for an explanation at this point."
After the court denied the motion, the prosecutor asked to make a record by giving an explanation for the peremptory challenges. The court allowed it, and the prosecutor said:
"Regarding [Kelly F.], she made it clear she had issues with the one-witness rule. She also had an issue with law enforcement that she said caused her some concern.
"Regarding [Danica D.], she had relatives that had been convicted of vandalism.
"There is some vandalism alleged in this case. The defendant is not charged with it, but the victim, my understanding, will testify that things were stolen from her, that her house was ransacked, which the defendant could have been charged with vandalism.
"Furthermore, [Danica D.] had an incident with an aunt that had endured domestic violence.
"This case, while it's not a domestic violence case, there are definitely attributes of domestic violence in this case, and that the victim is going to say that she was assaulted by the defendant in her home by the defendant and his girlfriend.
"In light of that, your Honor, I was uncomfortable with keeping [Danica D.] on the jury.
"Furthermore, if you look at the people that are on the jury, I don't think anyone is on this jury that has a relative that has a conviction other than a DUI.
"I was—I'm uncomfortable with having people that have relatives that have serious convictions, especially a conviction similar to the allegations or facts in this case."
We note also that in this case the victim was African-American, as were some of the witnesses.
C. Analysis
Defendant contends: (1) the trial court employed the incorrect standard for determining whether defendant made a prima facie showing that the prosecution exercised a challenge based on impermissible criteria, (2) the record does not support denying the Batson/Wheeler motion at the first stage of the inquiry, (3) the prosecutor's volunteered statement of reasons showed purposeful discrimination, and (4) this court must engage in a comparative analysis of the prospective jurors to determine whether there was a discriminatory purpose in excusing the African-American prospective jurors. We conclude that, even if the trial court employed the incorrect standard, any error was harmless because defendant did not make a prima facie showing of an impermissible challenge, and we need not engage in a comparative juror analysis.
1. Standard for Prima Facie Showing
Defendant claims that we must reverse because the trial court employed the wrong standard in considering the Batson/Wheeler motion. We agree the trial court applied the wrong standard. However, ultimately, we affirm because the error was harmless as defendant did not make a prima facie showing under the proper standard.
A defendant may raise a Wheeler/Batson claim even if only one potential juror has been excluded on the basis of group or racial identity. "[T]he exercise of even a single peremptory challenge solely on the basis of race or ethnicity offends the guarantee of equal protection of the laws under the Fourteenth Amendment to the federal Constitution. (Batson, supra, 476 U.S. 79; United States v. Martinez-Salazar (2000) 528 U.S. 304, 315 .) Such conduct also violates a defendant's right to trial by a jury drawn from a representative cross-section of the community under article I, section 16 of the state Constitution. (Wheeler, supra, 22 Cal.3d 258, 276-277.)" (Gutierrez, supra, 2 Cal.5th at p. 1157.)
Here, in considering defendant's Batson/Wheeler motion, the trial court repeatedly referred to the standard for finding a constitutional violation as "systematic exclusion." Having found no "systematic exclusion" of African-Americans, the court denied the motion.
"Systematic exclusion," which implies repeated instances of excluding jurors based on race, is the wrong standard. As noted, a single peremptory challenge solely on the basis of race violates the state and federal Constitutions. While cases have held that the inartful (and inaccurate) misnomer of "systematic exclusion" as the standard may not indicate that the trial court, in fact, applied the wrong standard (see, e.g., People v. Reynoso (2003) 31 Cal.4th 903, 927, fn. 8 (Reynoso)), the record in this case does not provide a basis for concluding that the trial court applied the correct standard. The trial court repeatedly used the term "systematic exclusion" and never referenced the correct standard. We must therefore conclude the trial court applied the wrong standard.
We recognize that a violation of constitutional provisions prohibiting use of a peremptory challenge solely on the basis of race is a structural error requiring reversal. (Gutierrez, supra, 2 Cal.5th at p. 1157.) But application of the wrong prima facie standard by the trial court does not establish that the prosecution used a peremptory challenge solely based on race. Instead, application of the wrong prima facie standard invokes de novo review on appeal. "We . . . independently review the record to ' "resolve the legal question whether the record supports an inference that the prosecutor excused a juror on the basis of race." ' [Citation.]" (People v. Cunningham (2015) 61 Cal.4th 609, 664, original italics.)
2. Denial of Motion at First Step
Even though the trial court stated the wrong standard while considering the Batson/Wheeler motion, we conclude, on de novo review, that the record does not support an inference the prosecutor excused prospective juror Danica D. solely on the basis of race.
Because the trial court denied the Batson/Wheeler motion without asking the prosecution for its reasons for excusing particular jurors, the denial of the motion was during the first stage of the Batson/Wheeler inquiry. (People v. Scott (2015) 61 Cal.4th 363, 386-391.)
"The United States Supreme Court did not intend a movant's burden at the first, prima facie, stage 'to be so onerous that a defendant would have to persuade the judge—on the basis of all the facts, some of which are impossible for the defendant to know with certainty—that the challenge was more likely than not the product of purposeful discrimination. Instead, 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. Harris (2013) 57 Cal.4th 804, 833 (Harris).)
"Although a prima facie showing may be made from any evidence in the record, we have noted 'certain types of evidence that will be relevant for this purpose. Thus the party may show that [opposing counsel] has struck most or all of the members of the identified group from the venire, or has used a disproportionate number of . . . peremptories against the group. [The moving party] may also demonstrate that the jurors in question share only this one characteristic—their membership in the group—and that in all other respects they are as heterogeneous as the community as a whole. Next, the showing may be supplemented when appropriate by such circumstances as the failure of [opposing counsel] to engage these same jurors in more than desultory voir dire, or indeed to ask them any questions at all. Lastly, . . . the defendant need not be a member of the excluded group in order to complain of a violation of the representative cross-section rule; yet if [the defendant] is, and especially if in addition [the] alleged victim is a member of the group to which the majority of the remaining jurors belong, these facts may also be called to the court's attention.' [Citation.]" (Harris, supra, 57 Cal.4th at pp. 834-835.)
Gutierrez, a notable reversal by the California Supreme Court based on bias in jury selection against an identifiable group, does not change the analysis. (Gutierrez, supra, 2 Cal.5th 1150.) That case involved the third stage of a Batson/Wheeler analysis and did no more than mention the first step. (Id. at p. 1158.)
Before we consider specifically the voir dire of prospective juror Danica D., we note that the circumstances of this case, with a victim and some witnesses who were African-American, suggest less motivation for the prosecutor to exercise a peremptory challenge based solely on the prospective juror's race. This reasoning is illustrated in People v. Sanchez (2016) 63 Cal.4th 411. There, the defendant indicated that "three defendants were Hispanic and the two murder victims were not." (Id. at p. 436.) But our high court observed that many other victims were Hispanic, including an attempted murder victim and two victims of "particularly vicious" assaults with a stun gun. (Ibid.) The court concluded: "It is not clear prosecutors would be motivated to excuse prospective jurors who self-identified as Mexican-American in a case involving so many apparently Hispanic victims, including at least one from Mexico. This factor does not support an inference of discriminatory purpose." Similarly, in Reynoso, the court observed: "Here, . . . both the defendants and the murder victim were of Hispanic ancestry, a circumstance that might be viewed as neutralizing any suspected untoward belief on the prosecutor's part that Hispanic jurors would tend to be biased in favor of, and thereby be more inclined to vote to acquit, the Hispanic defendants." (Reynoso, supra, 31 Cal.4th at p. 926, fn. 7, italics omitted.)
Defendant asserts that Danica D. "normally would be an ideal juror from a prosecutor's point of view in a case involving violence or sexual assault against a woman." The record does not support that assertion for several reasons.
First, Danica D.'s cousins committed vandalism approximately 10 years earlier when they were in their early teenage years. Defendant claims that prospective juror Danica D. believed the punishment for her cousins for vandalism was fair, but that is an unjustified characterization of what the prospective juror said. She said, "Uh, I don't know. We were kind of young, so they I thought they got a fair punishment, but I don't know." This language does not evince a belief that the punishment was fair; instead, it demonstrates ambivalence. She said twice that she was not sure whether the punishment was fair and couched the comment concerning fair punishment on her being young. Also, there was vandalism in this case, even though it was not charged. The record shows that defendant ransacked the victim's apartment.
Second, defendant implies that Danica D.'s criminal justice major was favorable to the prosecution. But that does not necessarily make her pro-prosecution. Some people go into criminal justice to work with or for defenders, and, in fact, that was Danica D.'s first choice; she was interested in "youth corrections."
Third, Danica D. worked at a women's shelter, but, when asked about whether she encountered victims of sexual assault, she said, "They don't really say. I work in the office. It just says domestic violence, but I don't think what their nature or anything." Apparently, she did not work closely with domestic violence victims.
Fourth, and finally, one element of prospective juror Danica D.'s voir dire, her characterization of her own aunt, a victim of domestic violence, is particularly noteworthy and would give any prosecutor pause in a case like this. When asked about her aunt's experience as a victim of domestic violence, she noted that her aunt was still in the relationship and was a "drama queen." The characterization suggests Danica D. thought the aunt overreacted or exaggerated what had happened. For this reason, she was not an ideal juror for the prosecution because it signaled that she would be skeptical about the victim's testimony.
Contrary to defendant's assertion on appeal that Danica D. would be an ideal juror for the prosecution, the record suggests otherwise. Indeed, it does not support an inference that the prosecutor used a peremptory challenge to excuse Danica D. based solely on race.
3. Prosecutor's Statement of Reasons
Defendant argues that, considering the reasons given by the prosecutor for excusing prospective juror Danica D. after the trial court had denied the Batson/Wheeler motion, the totality of the circumstances establishes that the prosecutor engaged in purposeful discrimination when he excused Danica D. However, because the trial court denied the motion in the first stage of the Batson/Wheeler inquiry and the prosecutor volunteered reasons only after the motion had been denied, the prosecutor's statements are not relevant to our review of the trial court's denial of the motion. The prosecutor's statement of reasons for exercising peremptory challenges does not become relevant unless the prima facie showing has been made and the trial court considers the prosecutor's statement. (People v. Scott, supra, 61 Cal.4th at pp. 390-391; People v. Sattiewhite (2014) 59 Cal.4th 446, 469.)
4. Comparative Analysis
Defendant asserts that we must engage in a comparative analysis to determine, in the first instance, whether the record reveals discriminatory use of peremptory challenges by the prosecution. California law, however, does not require such analysis in the first instance on appeal. (Harris, supra, 57 Cal.4th at p. 836.)
In support of his assertion that we must engage in the comparative analysis, defendant relies on Justice Liu's concurring opinion in Harris, where he expresses his opinion that a comparative juror analysis should be undertaken on appeal when the trial court denies the Batson/Wheeler motion at the first stage, and on federal court opinions such as the Ninth Circuit's decision in United States v. Collins (9th Cir. 2009) 551 F.3d 914. However, we reject this proposition for four reasons. First, Justice Liu's concurring opinion has no precedential weight. Second, Justice Liu, after criticizing California law, applied it. He wrote: "In sum, our Batson jurisprudence falls short of the vigilance required by the constitutional guarantee of equal protection of the laws. Nevertheless, under compulsion of this court's precedent, I concur in the denial of defendant's Batson claim and, in all other respects, join the opinion of the court." (Harris, supra, 57 Cal.4th at p. 891 [conc. opn. of Liu, J.].) Third, we are bound by California Supreme Court precedent. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) And fourth, decisions of federal courts other than the United States Supreme Court are not binding on California courts with respect to constitutional issues. (People v. Zapien (1993) 4 Cal.4th 929, 989.)
Defendant also argues that his convictions must be reversed because some juror questionnaires from his trial are not available. He asserts that, in response to his motion to augment the record with juror questionnaires, which motion we granted, he received only the questionnaires of the seated jurors. In his brief, defendant claims that the unavailability of the questionnaires for the prospective jurors who were not selected inhibits his ability to show, by comparative analysis, that the prosecutor excused prospective jurors for improper reasons. Defendant labels this situation a due process violation. We disagree. Because he is not entitled to a comparative juror analysis on appeal of the trial court's stage one prima facie showing ruling, the absence in the record of questionnaires for the prospective jurors not selected is irrelevant and not a due process violation. (People v. Parker (2017) 2 Cal.5th 1184, 1213; People v. Ayala (2000) 24 Cal.4th 243, 270 [record deficiency prejudicial only if it affects ability to prosecute appeal].)
II
Consecutive Sentencing
Defendant contends that, because the record does not show the trial court knew it had discretion to impose concurrent sentences when it imposed consecutive sentences, we must remand for resentencing. He claims that the trial court's failure to state its reasons for imposing consecutive sentences for counts one through five establishes that the court did not know it could sentence on those counts concurrently. We find no error in the trial court's consecutive sentencing.
Under the Three Strikes law, consecutive sentences are mandatory for any current felony convictions "not committed on the same occasion, and not arising from the same set of operative facts." (§ 667, subd. (c)(6); People v. Lawrence (2000) 24 Cal.4th 219, 222-223.) But consecutive sentences are not mandated if the current felony convictions are committed on the same occasion or arise from the same set of operative facts. (People v. Deloza (1998) 18 Cal.4th 585, 591.) If the record shows that a trial court mistakenly believed it was required to impose consecutive terms when it had discretion to impose concurrent terms, the matter must be remanded to allow the trial court to "impose sentence with full awareness of its discretion." (People v. Fuhrman (1997) 16 Cal.4th 930, 944.)
In the absence of indications to the contrary, we presume the trial court understood the law and applied it appropriately. (People v. Mosley (1997) 53 Cal.App.4th 489, 496.) Also, even if the court did not know it had discretion, we will not reverse if "the exercise of such discretion in the defendant's favor was not a realistic possibility." (People Fuhrman, supra, 16 Cal.4th at p. 945.)
When it denied defendant's motion to strike the prior serious conviction, the trial court found that defendant is dangerous, as established by both his prior conviction and his current crimes. The court said: "He falls directly within the purview of the reason the voters of this state created the three strike law and the reason it exists."
The court then moved on to sentencing:
"The Defendant is not eligible for probation pursuant to Penal Code section 776(c)(2) and 1170.12(a)(2). Under no circumstances would he be an appropriate candidate for probation even if he were eligible.
"Circumstances in aggravation [as] set forth in the probation report are all justified by the trial that I heard and the prior criminality of this defendant.
"Each of the charged sex crimes in this case were violent sex crimes, although they were committed on the same victim it was a single occasion, however, the rape, itself, took place in some degree of separation from the other criminality.
"As to Count 6, the principal term, the Defendant is sentenced to the high term in the state prison. High term being imposed due to the Defendant being on parole at the time this crime was committed.
"That term is doubled pursuant to the provisions of the three strikes law, bringing his sentence to 16 years, an additional 5 years because of the Defendant's 667(a) prior convictions is added to that term, for a total of 21 years.
"As to Counts 1, 2, 3, 4, and 5 the Defendant is committed to the state prison on each of those counts for the term of 15 years to life pursuant to the provisions of Penal Code section 667.61(e)(5).
"Each of those terms is doubled. Bringing the total term as to each one of those counts to 30 years to life.
"An additional 5 years is added to each of those life terms pursuant to the provisions of Penal Code section 667(a).
"As to each one of those counts, 1 through 5, the Defendant is committed for 35 years to life.
Five years for each count (for the prior serious felony enhancement (§ 667, subd. (a)) was a determinate term. Therefore, the term for each of counts one through five was an indeterminate term of 30 years to life plus a five-year determinate term. This is accurately reflected in the trial court's summary at the end of sentence imposition and in the abstract of judgment. --------
"Each of those will run consecutive to one another and consecutive to the 46 year term.
"Bringing his total aggregate term of incarceration to 150 years to life. Plus an additional 46 years."
Nothing in this sentencing establishes ignorance of the trial court concerning discretion to impose concurrent sentences. To the contrary, the court noted that several of the counts were committed on the same victim on a single occasion. That statement implied that the trial court knew the circumstance was relevant to its sentencing.
Defendant argues that the trial court's failure to give reasons for its consecutive sentencing choices establishes that the court did not know it had discretion to impose concurrent sentences. If the trial court believed it had discretion to impose a consecutive or concurrent term, it was required to provide a statement of reasons for choosing a consecutive term. (People v. Hall (1998) 67 Cal.App.4th 128, 137-138.) Therefore, failure to state reasons may indicate that the trial court did not know it had discretion. In this case, however, the court's reference to the circumstance that some of defendant's abhorrent sex crimes were committed on the same victim on a single occasion reveals that the trial court knew it had discretion because that circumstance had no relevance to sentencing other than to make concurrent or consecutive sentencing discretionary.
Therefore, nothing in this record rebuts the presumption that the trial court was aware of its discretion, and defendant's contention that we must remand for resentencing is without merit.
In any event, the trial court's comments concerning defendant's dangerousness and the full applicability of the Three Strikes law also make it apparent that there is no realistic possibility of concurrent sentencing if we remand. Defendant is not entitled to remand.
DISPOSITION
The judgment is affirmed.
NICHOLSON, Acting P. J. We concur: ROBIE, J. MURRAY, J.