Opinion
A165513
11-07-2023
THE PEOPLE, Plaintiff and Respondent, v. DELANO BLAYZE MALANG, Defendant and Appellant.
NOT TO BE PUBLISHED
Humboldt County Super. Ct. No. CR2102316
MARGULIES, J.
After the 12-juror panel was sworn but before alternate jurors were seated, defense counsel claimed the prosecutor had used two peremptory challenges in a discriminatory manner. Finding the motion was untimely, the trial court declined to consider the motion. Defendant contends the matter must be remanded for further proceedings under Code of Civil Procedure section 231.7, because the trial court failed to properly litigate the motion. Because his motion made before the alternates were selected and seated was timely, we agree with defendant that this matter must be remanded for the trial court to conduct further proceedings.
All further statutory references are to the Code of Civil Procedure unless otherwise indicated.
Because the underlying facts are not relevant to the issue on appeal, we do not recite them.
A jury convicted defendant of mayhem (Pen. Code, § 203), assault by means of force likely to produce great bodily injury (id., § 245, subd. (a)(4)), resisting an executive officer (id., § 69), and misdemeanor resisting a police officer (id., § 148, subd. (a)(1)). The jury also found true defendant personally inflicted great bodily injury. (Pen. Code, § 12022.7, subd. (a).) In a bifurcated trial, the court found the charged, prior serious felony conviction true. (Pen. Code, § 667, subds. (a)-(i).)
The trial court later struck the prior conviction and sentenced defendant to four years and eight months in state prison.
II. DISCUSSION
A. Section 231.7 Motion
1. Additional Procedural Background
During jury selection of the 12 jurors, defense counsel and the prosecutor each stated they were satisfied with the panel as constituted. The 12-juror panel was then sworn in.
Thereafter, the court stated three alternate jurors needed to be selected, and the jury voir dire continued as to the alternate jurors.
During the alternate juror selection process, defense counsel made what he called a "Batson Wheeler challenge," arguing the prosecutor had used two peremptory challenges in a discriminatory manner when he requested two Hispanic jurors be excused. After the prosecutor gave his reasons for challenging the two prospective alternate jurors, the court found the prosecutor had provided valid reasons for challenging both jurors.
Batson v. Kentucky (1986) 476 U.S. 79 (Batson) and People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler). In 2020, the Legislature passed Assembly Bill No. 3070 (2019-2020 Reg. Sess.) which enacted section 231.7. The statute codifies the Batson/Wheeler principle prohibiting unlawful discrimination in the use of peremptory challenges. Although defendant termed his motion a "Batson Wheeler challenge" in the trial court, section 231.7 was in effect at the time of his trial, the trial court relied on the new law in deciding the motion, and the parties do not dispute section 231.7 applies here. Accordingly, we will refer to defendant's motion as a section 231.7 motion.
Immediately, following the court's ruling, defense counsel stated he "had a chance to look closer at [the prosecutor's] use of his peremptories" and identified two additional prospective jurors he asserted had been improperly removed, "at least in part due to racial bias." Defense counsel indicated he believed Ms. J. was either "Native-American or Hispanic," and Mr. A. was "Latino."
Although defendant is Filipino, the court noted neither excused juror appeared to be Filipino, and it needed to consider whether defendant was a member of the same perceived cognizable group as the challenged juror. The court found he was not. The court concluded, "That circumstance cuts in favor of overruling the objection." Then, the court pointed out defense counsel never asked prospective jurors whether there was anything about defendant being Filipino that would prevent them from being fair and impartial. The prosecutor stated he was not going to respond to "these two other issues," unless the court required him to do so.
Rather than asking the prosecutor to state his reasons for excusing Ms. J. and Mr. A., the court focused on the timeliness of the new objection made after the jury was impaneled: "My concern here is an objection being made after they have been gone. No chance for anyone to respond and no new information has come up that would have stopped you from making that objection to those. So I'm not going to allow just reach back that hours later after. [Sic.] I don't even know when some of those were dismissed. But certainly if at the time you thought there was some type of bias issue, which is what this is really focused on, is there a bias that is causing one or the other attorneys to kick people off based on this group that they may or may not be a part of? So I'm not going to address for lack of timeliness. Not in making, you know, making necessarily-not the timeliness of the jury hasn't been sat. [Sic.] The 12 have been sworn. But, more importantly, that there is an obligation that once you see it happening, you believe there is a violation, that's when to make the objection so it's fair to everyone to be able-for me to have a remedy like I was able to stop Mr. [L.] because my remedy would be I'm going to keep him on if I thought that that's what was happening. But I can't even do that now. I can't do that with [Ms. P.] because that wasn't made right away. That was kind of a softball, well, wait, her too. So I'm not going to go back. I don't think that's fair to them. I don't think it's fair to the other party to just start to kind of throw out a fishing pole to maybe, maybe, maybe when this Court doesn't see anybody who is Filipino or matches what a Filipino may or may not look like."
In short, the trial court denied defendant's section 231.7 motion.
2. Analysis
Defendant contends this case must be remanded for further proceedings because the trial court failed to properly litigate his section 231.7 motion. Citing section 231.7, In re Mendes (1979) 23 Cal.3d 847 (Mendes), and People v. Armendariz (1984) 37 Cal.3d 573 (Armendariz), defendant argues his motion was timely because a jury is not complete or impaneled until all the alternates are sworn.
Originally, we asked the parties to submit supplemental briefing addressing whether under People v. Cottle (2006) 39 Cal.4th 246 (Cottle), the trial court has the discretion to reopen jury selection after the 12-person jury has been impaneled, but before alternates are selected. As the Cottle court explained, the passage of the Trial Jury Selection and Management Act (§ 190 et seq.) in 1988 superseded the precedential authority of the cases cited by defendant, Mendes, supra, 23 Cal.3d 847 and Armendariz, supra, 37 Cal.3d 573, with regard to a trial court's discretion to reopen jury selection to allow the exercise of peremptory challenges after the trial jury is sworn. (Cottle, at pp. 253-255.) Importantly, however, unlike here, Cottle did not concern the timeliness of a Batson/Wheeler motion once a 12-person jury has been impaneled but before alternates are sworn. (Cottle, at pp. 257-258.)
We subsequently asked for additional supplemental briefing. The parties were directed to discuss whether People v. Scott (2015) 61 Cal.4th 363 (Scott) and People v. McDermott (2002) 28 Cal.4th 946 (McDermott) apply to the circumstances of this case.
In Scott, our Supreme Court concluded a Batson/Wheeler motion made after 12 jurors were sworn but before alternates were sworn was timely. The Scott court reasoned, "At the outset, we find erroneous the trial court's ruling that Scott's Batson/Wheeler motion was untimely. The trial court determined that Scott's motion was untimely because he did not object to the prosecutor's challenges to R.C. and H.R. until after the 12 jurors were sworn. A Batson/Wheeler motion is timely if it is made before jury impanelment is completed, which does not occur' "until the alternates are selected and sworn."' ([McDermott, supra,] 28 Cal.4th [at p.] 970, italics added.) As we explained in McDermott, 'discriminatory motive may become sufficiently apparent to establish a prima facie case only during the selection of alternate jurors, and a motion promptly made before the alternates are sworn, and before any remaining unselected prospective jurors are dismissed, is timely not only as to the prospective jurors challenged during the selection of the alternate jurors but also as to those dismissed during selection of the 12 jurors already sworn.' (Id. at p. 969.) Because Scott objected before the alternate jurors were selected and sworn, his Batson/Wheeler motion was timely." (Scott, supra, 61 Cal.4th at pp. 383-384.)
So too here, defendant's motion was timely, having been made before alternates were sworn. (See § 231.7, subd. (b) [objection to improper use of peremptory challenge must be made before the jury is impaneled, unless information becomes known that could not have been reasonably known before the jury was impaneled].) Because, as in Scott, jury impanelment was not completed, the trial court erred in failing to consider defendant's timely section 231.7 motion.
The People attempt to distinguish McDermott and Scott, arguing that in both cases, the defense made their Batson/Wheeler motions "contemporaneous, or at least very close in time, to the prosecutors' peremptory challenges," whereas, here, defense counsel made his peremptory challenges to Mr. A. and Ms. J. "hours after the prosecutor" had challenged and excused those jurors. And even assuming the motion was timely, the People assert "the court properly overruled the motion because it found that [unlike defendant] neither of the challenged jurors were Filipino." In addition, according to the People, Mr. A. "identified as French, and not as Hispanic, as defense counsel speculated."
We are unpersuaded by the People's arguments. First, the challenges to Mr. A. and Ms. J. were not untimely under McDermott and Scott because they were made before alternate jurors were sworn. (McDermott, supra, 28 Cal.4th at p. 970; Scott, supra, 61 Cal.4that pp. 383-384.) The People's suggestion that the section 231.7 motion was untimely because it was made "hours" after the jurors had been excused is unsupported by any apposite authority and their attempt to distinguish McDermott and Scott on that basis is unavailing.
Second, although neither of the excused jurors was identified by the court or the parties as Filipino, this is of no consequence. Section 231.7, which codifies the Batson/Wheeler principle that peremptory challenges may not be made on the basis of a prospective juror's race, makes no mention that challenged jurors must be of the same race or ethnicity as a defendant. (§ 231.7, subd. (a) ["A party shall not use a peremptory challenge to remove a prospective juror on the basis of the prospective juror's race, ethnicity, . . . national origin"].) While a court may consider whether the objecting party is a member of the same perceived cognizable group as the challenged juror in evaluating the prosecution's stated reasons for the challenge, that is only one of many factors the court may consider in light of the totality of the circumstances. (Id., subd. (d)(3).) Lastly, contrary to the People's claim, Mr. A. did not identify "as French." The record reflects the prosecutor merely stated, "Mr. [A.] said his name was French."
In short, once defense counsel made a section 231.7 motion prior to the impanelment of the alternates, expressing his belief that one of the excused jurors was Hispanic or Native American and the other was Latino, pursuant to section 231.7, the court was required to ask the prosecutor to state his reasons for excusing these two prospective jurors. The trial court did not do so. Thus, the court erred by failing to follow the proper procedure.
Defendant argues, and we agree, that the judgment must be conditionally reversed and the matter remanded for the trial court to consider defendant's section 231.7 motion. (See People v. Johnson (2006) 38 Cal.4th 1096, 1099, 1103-1104; People v. Rodriguez (1996) 50 Cal.App.4th 1013, 1024-1025.) If the trial court determines the prosecutor's reasons for excusing one or both prospective jurors were not racially neutral and grants defendant's motion, or if the court finds that it cannot adequately address the issues due to the passage of time or any other reason, reversal and retrial is required. Conversely, if the trial court determines the prosecutor's reasons for excusing the two jurors were racially neutral, and denies defendant's motion, defendant's conviction shall be ordered reinstated. (Johnson, at pp. 1103-1104; Rodriguez, at p. 1036.)
B. Conceded Sentencing Errors
Defendant identifies two errors in sentencing, which the Attorney General concedes. First, defendant contends the trial court erred by sentencing him on count 1 (mayhem) and imposing another concurrent sentence on count 2 (assault by means of force likely to produce great bodily injury). The parties ask that we stay the sentence for count 2.
Defendant's crimes of mayhem (count 1) and assault by means of force likely to produce great bodily injury (count 2) were based on the same act (defendant biting an officer's thumb). (Pen. Code, § 654 [act or omission punishable in different ways by different provisions of law may be punished under either provision but not more than one provision]; People v. Corpening (2016) 2 Cal.5th 307, 309, 315 [multiple punishment prohibited where "the same action completed the actus reus for each of [the] two crimes"].) If the trial court reinstates the judgment, it shall stay the concurrent sentence imposed for count 2.
Second, defendant contends we should vacate the booking fees the trial court imposed. Effective July 1, 2021, Assembly Bill No. 1869 (2019-2020 Reg. Sess.) repealed Government Code section 29550.2, which previously authorized such fees. Under Government Code section 6111, such fees are no longer enforceable or collectible. Accordingly, the booking fees and any unpaid balance must be vacated. (See People v. Lopez-Vinck (2021) 68 Cal.App.5th 945, 953-954.)
If the trial court reinstates the judgment, it shall correct these sentencing errors and forward a copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation.
III. DISPOSITION
We conditionally reverse the judgment and remand the matter for the trial court to consider defendant's section 231.7 motion consistent with this opinion.
WE CONCUR: HUMES, P. J. BANKE, J.