P. v. Fletcher

Filed 4/26/07 P. v. Fletcher CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

A jury found defendant Saprina Lanise Fletcher guilty of second degree robbery (Pen. Code, 211/212.5)[1] and with being a felon in possession of a concealed firearm ( 12025, subds. (a) & (b)(1)). The jury also found true allegations defendant personally had used a firearm in the commission of the robbery ( 12022.53, subd. (b); 12022.5, subd. (a)(1)). The court sentenced defendant to a term of 13 years in state prison. Defendant appeals, claiming Wheeler/Batson error. (People v. Wheeler (1978) 22 Cal.3d 258, 265 (Wheeler); Batson v. Kentucky (1986) 476 U.S. 79, 94 (Batson).)

We affirm.

Facts

As the only appellate argument concerns the jury selection process, there is no need for a detailed discussion of the facts. In essence, the evidence is that defendant compelled the victim to hand over her purse by threatening the victim with a gun. Defendant then drove off in a car with another woman, her codefendant.

Wheeler/Batson

[T]he use of peremptory challenges to remove prospective jurors on the sole ground of group bias violates the right to trial by a jury drawn from a representative cross-section of the community under article I, section 16 of the California Constitution. (Wheeler, supra, 22 Cal.3d at p. 276-277.) Group bias is a presumption that certain jurors are biased merely because they are members of an identifiable group distinguished on racial, religious, ethnic, or similar grounds. (Id. at p. 276.) The use of race-based peremptory challenges to remove jurors also violates the Equal Protection Clause of the Fourteenth Amendment to the federal Constitution. (Batson, supra, 476 U.S. at p. 84.) A party who suspects improper use of peremptory challenges must raise a timely objection and make a prima facie showing that one or more jurors has been excluded on the basis of group or racial identity. . . . Once a prima facie showing has been made, the prosecutor then must carry the burden of showing that he or she had genuine nondiscriminatory reasons for the challenge at issue. [Citation.] (People v. Jenkins (2000) 22 Cal.4th 900, 993.)  [T]he trial court must then decide . . . whether the opponent of the strike has proved purposeful . . . discrimination.  (People v. McDermott (2002) 28 Cal.4th 946, 971.)  When a trial court denies a Wheeler motion without finding a prima facie case of group bias, the appellate court reviews the record of voir dire for evidence to support the trial courts ruling. [Citations.] We will affirm the ruling where the record suggests grounds upon which the prosecutor might reasonably have challenged the jurors in question. [Citation.] (People v. Guerra (2006) 37 Cal.4th 1067, 1101.)
Defense counsel made a Batson/Wheeler challenge after the prosecutor exercised the second of his peremptory challenges against an African-American woman, one of two African-Americans then in the box. Two other African-Americans were among the prospective jurors who were not then in the box. The prospective juror had filled out a juror questionnaire reporting she was widowed and had three children, aged 28, 20 and 19. She was working as a caregiver and had worked for the same employer for the last four years. She was asked only a few questions by the court and the prosecutor, which revealed she had worked as a caregiver for developmentally delayed persons for the past 15 years. Defense counsel pointed out very little was known about the prospective juror, asserting he could see no reason for the challenge other than her race. The court, referring to the standard enunciated by the United States Supreme Court in Johnson v. California (2005) 545 U.S. 162 (Johnson), stated for the record that defendant and her codefendant are African-American. The court ruled counsel had not made out a prima facie showing of exclusion on the basis of group bias. It therefore did not require the prosecution to state a nondiscriminatory reason for the challenge. Defendant claims error, contending a prima facie case had been established under Johnson.

In Johnson, the United States Supreme Court overruled People v. Johnson (2003) 30 Cal.4th 1302, where the California court had held, at page 1318, to state a prima facie case, the objector must show that it is more likely than not the other partys peremptory challenges, if unexplained, were based on impermissible group bias. The United States Supreme Court held that the more likely than not standard was inappropriate. (Johnson, supra, 545 U.S. at p. 168.) Instead, a defendant satisfies the requirements of Batsons first step by producing evidence sufficient to permit the trial judge to draw an inference that discrimination has occurred. (Id. at p. 170.)  [A] defendant may establish a prima facie case of purposeful discrimination in selection of the petit jury solely on evidence concerning the prosecutors exercise of peremptory challenges at the defendants trial. To establish such a case, the defendant first must show that he is a member of a cognizable racial group, and that the prosecutor has exercised peremptory challenges to remove from the venire members of the defendants race. Second, the defendant is entitled to rely on the fact, as to which there can be no dispute, that peremptory challenges constitute a jury selection practice that permits those to discriminate who are of a mind to discriminate. Finally, 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. (Id. at p. 169; Batson, supra, 476 U.S. at p. 96.)

The California Supreme Court has had several occasions to consider whether the exclusion of a single prospective juror of an identifiable class may, or does, establish a prima facie case under the correct standard. In People v. Cornwell (2005) 37 Cal.4th 50, the defendant supported his claim by asserting that the prosecutor had challenged one of the two African-Americans among the potential jurors and the prospective juror would not have been subject to excusal for cause. (Id. at p. 69.) The court held, The circumstance that the prosecutor challenged one out of two African-American prospective jurors does not support an inference of bias, particularly in view of the circumstance that the other African-American juror had been passed repeatedly by the prosecutor from the beginning of the voir dire and ultimately served on the jury. [Citations.] The circumstance that the juror was not subject to exclusion for cause certainly did not support an inference that the exercise of a peremptory challenge against her was motivated by group bias. [Citations.] (Id. at pp. 69-70.)

In People v. Guerra, supra, 37 Cal.4th 1067, the court found the exclusion of the only Hispanic sitting in the jury box, leaving only two other Hispanics on the entire panel, standing alone, is not dispositive of the issue of whether defendant established a prima facie case. (Id. at p. 1101.) Similarly, that the prosecutor had challenged an African-American prospective juror, after a concededly correct challenge of another African-American prospective juror, is not dispositive of whether defendant established a prima facie case. (Id. at p. 1102.) The court then reviewed the record and found other, nondiscriminatory reasons for any prosecutor to challenge the prospective jurors, concluding defense counsel had not made out a prima facie case. (Id. at pp. 1101-1104.)

In People v. Avila (2006) 38 Cal.4th 491, the defendant had supported his claim by asserting the prosecutor had exercised a peremptory challenge against the only African-American individual out of her group of 24 prospective jurors called to the box, the prosecutor had not asked the prospective juror any questions and the prospective jurors answers to the jury questionnaire and the courts questioning had been evenhanded. The Supreme Court reviewed the prospective jurors answers and responses, pointing out they disclosed a number of reasons other than racial bias for any prosecutor to challenge her.  (Id. at p. 554.) The court also noted that although the prospective juror may have been the only African-American in her group of 24 called to the box, several African-American prospective jurors remained on the panel. The record thus does not support an inference that the prosecutor excused [the prospective juror] on the basis of race. (Id. at p. 555.)

Here, the challenged juror was not the only African-American prospective juror then in the box, and there were other African-Americans on the panel. In addition, contrary to defense counsels claims, there were race-neutral reasons for challenging the prospective juror. Defendant was only a few years older than the prospective jurors oldest child.[2] The challenged juror was a widow and a caregiver to developmentally disabled persons, and therefore reasonably might be expected to sympathize with persons in trouble, or who made bad choices or were having difficulty making ends meet. The record does not support an inference the prosecutor excused the prospective juror on the basis of race.

Disposition

The judgment is affirmed.

_________________________

STEIN, J.

We concur:

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MARCHIANO, P. J.

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MARGULIES, J.

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[1] Statutory references are to the Penal Code.

[2] According to the probation report, defendant was born on November 18, 1971, making her only five years older than the jurors oldest child