P. v. Beal
Filed 2/24/12 P. v. Beal CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL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opinion has not been certified for publication or ordered published for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
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE,
Plaintiff
and Respondent,
v.
BOBBIE BEAL,
Defendant
and Appellant.
B231175
(Los Angeles County
Super. Ct. No. BA373655)
APPEAL from
a judgment of the Superior Court of
County, Norm Shapiro, Judge.
Reversed and remanded.
Alex Green,
under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Paul M. Roadarmel, Jr., and Baine P. Kerr, Deputy Attorneys General, for
Plaintiff and Respondent.
of possessing hydrocodone for sale and
sentenced to an eight-year prison term.
He contends on appeal that the trial court erred in denying his
challenge pursuant to Batson v. Kentucky
(1986) 476 U.S. 79 (Batson) and
excusal of three African-American jurors.
We conclude that the trial court’s denial of the Batson/Wheeler challenge to one juror was supported by
court erred in finding defendant’s challenge to the other two untimely. We therefore conditionally reverse the
judgment and remand with directions.
On October
19, 2010,
defendant was charged by a second amended information with selling hydrocodone
(Health & Safety Code, § 11352, subd. (a) [count one]) and possession for
sale of hydrocodone (id., § 11351
[count two]). The information also
alleged 12 prior “strike” convictions.
(Pen. Code, §§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d).)
On October
29, 2010, a
jury found defendant guilty of possessing hydrocodone for sale, but was unable
to reach a verdict regarding the sales allegation. The court declared a mistrial as to this
charge.
On February
24, 2011,
following defendant’s waiver of his right
to a jury trial as to the prior convictions, the court found the prior
convictions to be true. Pursuant to
Penal Code section 1385, the court struck 11 of defendant’s 12 strikes. It then sentenced defendant to an eight-year
prison term (upper term of four years doubled pursuant to the “Three Strikes”
law).
Defendant
timely appealed.
DISCUSSION
Defendant
contends that the trial court erred by denying his challenge pursuant to
jurors. Specifically, he contends: (1) the trial court’s conclusion that the
prosecution excused Juror No. 33 for a race-neutral reason was not supported by
substantial evidence; and (2) the trial court erred when it refused to
require the prosecutor to articulate her reasons for excusing two other
African-American jurors. We consider
these issues below.
I. Relevant
Facts
During voir dire, Juror No. 33
stated that she lived in Los Angeles, “[r]ight outside Compton,” worked as an
executive assistant for a CPA firm, was divorced, and had three adult sons, all
of whom were employed. She also stated
that she previously sat as a juror in two civil cases and a verdict was reached
in both of those matters.
When
questioned by defense counsel, Juror No. 33 stated as follows:
“Ms.
Many: . . . And, Juror No. 33,
the same kind of questions. Do you have
any idea about that, about a police officer coming into court What do you think
“Prospective
Juror No. 33: None, whatsoever.
“Ms. Many: You have no feelings about it at all
“Prospective
Juror No. 33: No.
“Ms.
Many: How do you feel about the charges
here today Do you have any strong
feelings one way or another about the accusations being made or allegations
“Prospective
Juror No. 33: Not really because nothing
has been proven, so.
“Ms.
Many: You feel you’re open-mind[ed],
open slate
“Prospective
Juror No. 33: Yes.
“Ms.
Many: Do you understand if it shows
people that have a different socioeconomic group may live differently than
other people
“Prospective
Juror No. 33: Of course.
“Ms.
Many: Say they have habits and patterns
that are different than yours, or people that are more stable, do you accept
that
“Prospective
Juror No. 33: Yes. But I believe the people that are stable,
it’s not saying they’re not doing the same thing.
“Ms.
Many: You’re talking about committing
crimes
“Prospective
Juror No. 33: Yes.
“Ms.
Many: Fair enough.”
Subsequently,
the prosecutor exercised a peremptory challenge to excuse Juror No. 33. The following colloquy then took place at
sidebar.
“Ms.
Many: I’m sorry, I have to make a
She’s the third out of four Black jurors. Two have already been excused. I was a little concerned. She’s now . . . the third juror
who’s also Black. I should mention my
client’s African-American. She’s being
excused. I don’t see any reason for
it. I don’t see any reason for Mr. (name
redacted) to be excused, or the first guy, No. 4, who was Black.
“The Court: Lea[ving] aside the other people[,] as to this
particular juror, you think there is insufficient reason
“Ms.
Many: At this point I’m not going to
give the benefit of the doubt.
“The
Court: You think that there is
insufficient reason to excuse this juror based on race
“Ms.
Many: Yes.
“The
Court: Could you review what you were
able to recall from the interview of this juror
“Ms.
Many: She lives in Los Angeles.
She’s an assistant for an investment firm. Three adult children, three adult kids. They’re also doing well. One is in the service. The other one is doing well. She’s been on two civil trials and reach[ed]
verdicts. I haven’t seen anything
negative. They were all very neutral.
“The
Court: My observation I didn’t seem to
recall anything negative. Go ahead and
state the reasons as to her.
“Ms.
Kardan: First of all, counsel asked her
about socioeconomic people being held up in the criminal justice system. She made a comment specifically that said,
other people do it too. They just don’t
hear about it. That made me feel people
are targeted in the socioeconomic field.
That would be a level of sympathy toward somebody, not privilege[d]. That was one thing. She also has a cross necklace and big cross
earrings. I tend to think people who are
religious to that extent have a difficult time judging other people.
“The
Court: Anything else
“Ms.
Kardan: No.
“The
Court: Any responses or any thoughts
“Ms.
Many: I do. I didn’t pay any attention to the
jewelry. She certainly wasn’t questioned
whether she made any comments she couldn’t be judgmental, or sit in
judgment. As to the statement of the
question, I asked her was she, did she understand people of different
socioeconomic groups might behave differently.
She said, yes. I think she
misunderstood my question which finding [sic]
in her response people of other economic groups may do the same kinds of
things, but they may not get caught as much.
I don’t think that shows particular prejudice.
“The
Court: I understand where you’re coming
from here. I understand your client’s
Black. I understand how you feel, how
the process, this is your first mention.
I do think that the District Attorney indicated her impression with the
juror’s answer to that left her with a feeling that she may be
problematic. So I have to honor
that. As far as the religious impulse, I
didn’t notice that either. Then, again,
the District Attorney gets the certain impression that people who do perhaps
exhibit or wear their religion, perhaps Ms. Kardan has found over in her
experience there have been some difficulty.
She tended to stay away from those jurors. On that reason I think the District Attorney
has established a reason that is sufficient for me to honor the challenge.
“Ms.
Many: I think the Court needs to inquire
as to the other jurors also excused. I
don’t believe there was any reason for that.
“The
Court: Unfortunately you didn’t make a
challenge. So I’m not in a position to
make a reasonable call on that. If you
had, I would have gone through the same process here. So there’s not much I can do for you on
those.
“Ms.
Many: I believe the law asks the Court
at this time to even justify those challenges.
“The
Court: I’m not in the position to do
that because we have had 90 jurors in this courtroom. There will be another 20 or so that we
haven’t interviewed yet of the 70 or so.
I’m not in a position at this time just because you’ve been refused on
this challenge to go back now and make calls on the others. Those jurors have left the courtroom. Your challenge on them is untimely, so I
can’t take any action on that.
“Ms.
Many: Over my objection.
“The
Court: The record is clear.
“Ms.
Many: Again, I just wanted to make extra
clear there have been four Black people in the box. Three have been dismissed already by the
Prosecutor.
“The
Court: Excused
“Ms.
Many: Excused on a peremptory challenge,
yes.
“The
Court: I understand your point on this
particular issue here. I think the
District Attorney has stated a reason.
The Court accepts that. So I’ll
excuse the juror and seat the next juror.”
“A
prosecutor’s use of peremptory challenges to strike prospective jurors on the
basis of group bias—that is, bias against ‘members of an identifiable group
distinguished on racial, religious, ethnic, or similar grounds’—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. (Wheeler, supra, 22 Cal.3d
at pp. 276-277; see People v. Griffin
(2004) 33 Cal.4th 536, 553.) Such a
practice also violates the defendant’s right to equal protection under the
Fourteenth Amendment to the United States Constitution. (Batson,
supra, 476 U.S. at p. 88; see also
704, 732.)
“The United
States Supreme Court has recently reaffirmed that Batson states the procedure and standard to be used by trial courts
when motions challenging peremptory strikes are made. ‘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
(Johnson v. California (2005)
545 U.S. 162, 168, fn. omitted.)” (
541.)
Supported the Trial Court’s Conclusion That the Prosecutor Excused Juror No. 33
for Race-Neutral Reasons
Defendant
contends that the trial court erred in concluding that the prosecutor excused
Juror No. 33 for race-neutral reasons.
For the following reason, we disagree.
“A
prosecutor asked to explain his conduct must provide a ‘“clear and reasonably
specific” explanation of his “legitimate reasons” for exercising the
challenges.’ (Batson, supra, 476 U.S.
at p. 98, fn. 20.) ‘The justification
need not support a challenge for cause,
and even a “trivial” reason, if genuine and neutral, will suffice.’ (People
v. Arias (1996) 13 Cal.4th 92, 136, italics added.) A prospective juror may be excused based upon
facial expressions, gestures, hunches, and even for arbitrary or idiosyncratic
reasons. (See People v. Turner (1994) 8 Cal.4th 137, 165; Wheeler, supra, 22 Cal.3d
at p. 275.) Nevertheless, although a
prosecutor may rely on any number of bases to select jurors, a legitimate
reason is one that does not deny equal protection. (Purkett
v. Elem (1995) 514 U.S. 765, 769.)
Certainly a challenge based on racial prejudice would not be supported
by a legitimate reason.
“At the
third stage of the Wheeler/Batson
inquiry, ‘the issue comes down to whether the trial court finds the
prosecutor’s race-neutral explanations to be credible. Credibility can be measured by, among other
factors, the prosecutor’s demeanor; by how reasonable, or how improbable, the
explanations are; and by whether the proffered rationale has some basis in accepted
trial strategy.’ ([Miller‑El v. Cockrell (2003)] 537 U.S. [322,] 339.) [Fn. omitted.] In assessing credibility, the court draws
upon its contemporaneous observations of the voir dire. It may also rely on the court’s own
experiences as a lawyer and bench officer in the community, and even the common
practices of the advocate and the office that employs him or her. (See Wheeler,
supra, 22 Cal.3d at p. 281.)
“Review of a
trial court’s denial of a Wheeler/Batson
motion is deferential, examining only whether substantial evidence supports its
conclusions. (People v. Bonilla [(2007)] 41 Cal.4th [313,] 341-342.) ‘We review a trial court’s determination
regarding the sufficiency of a prosecutor’s justifications for exercising
peremptory challenges “‘with great restraint.’”
[Citation.] We presume that a
prosecutor uses peremptory challenges in a constitutional manner and give great
deference to the trial court’s ability to distinguish bona fide reasons from
sham excuses. [Citation.] So long as the trial court makes a sincere
and reasoned effort to evaluate the nondiscriminatory justifications offered,
its conclusions are entitled to deference on appeal. [Citation.]’
(People v. Burgener (2003) 29
Cal.4th 833, 864.)” (
613-614.)
In the
present case, the prosecutor articulated two reasons for her exercise of a
peremptory challenge against Juror No. 33:
(1) her impression that Juror No. 33 believed that people of low
socioeconomic status are unfairly targeted by law enforcement, and (2) her
belief that people who are very religious (as she believed Juror No. 33 was,
based on her large cross earrings and necklace) have a difficult time judging
others. The record reflects that the
trial court made a “sincere and reasoned effort” to evaluate these
justifications, crediting the prosecutor’s statements that Juror No. 33 “left
her with a feeling that she may be problematic” and that she tends to excuse
jurors who “exhibit or wear their religion” because “in her experience there
have been some difficulty.” We defer to
these observations on appeal and, because an analysis of the record
demonstrates the trial court’s findings that the prosecutor’s proffered reasons were not pretextual, we conclude that
the trial court did not err in denying the Batson/Wheeler
challenge with regard to Juror No. 33.
Concluding That Defendant’s Challenge to Two Other African-American Jurors Was
Untimely
Defendant
contends that the trial court erred in refusing to consider the merits of his
challenge to the prosecutor’s peremptory excusal of two African-American jurors
who were excused before Juror No. 33. As
to those jurors, the trial court said defendant’s challenge was “untimely” and
thus the court “can’t take any action on that [defendant’s Batson/Wheeler challenge].”
The court thus never considered whether defendant had successfully made
out a prima facie case as to these jurors.
The Attorney
General contends that the present record does not permit us to review
defendant’s challenge because “Juror 4’s race is not apparent from the record
[internal record reference omitted], and the record does not show the identity
of Mr. (name redacted).” We do not
agree. Although we cannot determine the
juror’s race from the appellate record, “[w]e can assume [defense attorney’s]
description was accurate, as neither the court nor [the prosecutor] challenged
it.” (People v. Hamilton (2009) 45 Cal.4th 863, 905.) We thus assume, as defendant asserts, that
the prosecutor exercised two peremptory challenges against African-American
jurors before exercising a similar challenge against Juror No. 33.
As to those
two African-American jurors, the trial court erred in concluding that
defendant’s Batson/Wheeler challenge
was untimely. In People v. Rodriguez (1996) 50 Cal.App.4th 1013, 1020-1021, 12
jurors were sworn to decide the case.
During the process of selecting those jurors, the prosecutor exercised
peremptory challenges as to two Hispanic jurors. After the jury was sworn, the court went on
to select three alternates. When the
prosecutor exercised a peremptory
challenge against a Hispanic alternate, the defense attorney immediately
made a Batson/Wheeler motion as to
the excusal of all three Hispanic jurors.
The trial court considered the motion as to the alternate juror, but
denied it as to the two other jurors, stating that it “‘has not been made
timely.’” (Id. at p. 1021.) The Court
of Appeal reversed, concluding that defendant’s Batson/Wheeler motion was timely as to all three Hispanic
jurors. (Id. at p. 1023.)
Quoting its earlier decision in People
v. Gore (1993) 18 Cal.App.4th 692, the court explained as follows: “‘. . . [T]o be timely a
made, at the latest, before jury selection is completed. “The general rule is that where a court has
indicated that a trial will be conducted with alternate jurors, the impanelment
of the jury is not deemed complete until the alternates are selected and
sworn.” (In re Mendes (1979) 23 Cal.3d 847, 853.)’ (18 Cal.App.4th at p. 703.)” (People
v. Rodriguez, supra, at p.
1023.) Thus, because the jury had not
yet been impaneled when the defendant made his Batson/Wheeler motion, the motion was timely.
In the
present case, defendant made his Batson/Wheeler
challenge as to all three African-American jurors well before the jury was
empanelled or sworn. Accordingly, the
trial court erred when it ruled that challenge was untimely. The question then becomes the appropriate
remedy.
Our Supreme
Court addressed the issue of remedy in People
v. Johnson (2006) 38 Cal.4th 1096, 1103-1104 (Johnson). There, the court
held that although the trial court had erred in concluding that the defendant
had not established a prima facie case of group bias under Batson, it need not reverse the judgment. Instead, even though seven or eight years had
passed since the jury selection, it remanded the case with directions to the
trial court to attempt to conduct the second and third Batson steps. (
court “should require the prosecutor to explain his challenges. If the prosecutor offers a race-neutral
explanation, the court must try to evaluate that explanation and decide whether
defendant has proved purposeful racial discrimination. If the court finds that, due to the passage
of time or any other reason, it cannot adequately address the issues at this
stage or make a reliable determination, or if it determines that the prosecutor
exercised his peremptory challenges improperly, it should set the case for a
new trial. If it finds the prosecutor
exercised his peremptory challenges in a permissible fashion, it should
reinstate the judgment.” (
This court
reached a similar result in People v.
Hutchins (2007) 147 Cal.App.4th 992 (Hutchins). There, the defendant made a
exercised a peremptory challenge to an African-American juror. The trial court found that defendant had made
a prima facie case, but ultimately concluded that it could not find purposeful
discrimination by clear and convincing evidence. (Id.
at p. 996.) We held that the opponent of
a peremptory challenge does not have the burden of proving purposeful race
discrimination by clear and convincing evidence; rather, it need only
demonstrate such discrimination by a preponderance of the evidence. (Id.
at p. 997.) Further, we concluded that
we could not determine in the first instance whether the prosecutor had shown
by a preponderance of the evidence that her peremptory challenge was
race-neutral. (Id. at p. 998.) We thus said
a limited remand was appropriate so that the trial court could reconsider the
third step under the proper legal standard.
We noted that the factors to be considered in determining whether remand
is appropriate are “‘the length of time since voir dire, the likelihood that
the court and counsel will recall the circumstances of the case, the likelihood
that the prosecution will remember the reasons for the peremptory challenges,
as well as the ability of the trial judge to recall and assess the manner in
which the prosecutor examined the venire and exercised other peremptory
challenges.’” (Id. at pp. 998-999.) Because
voir dire had occurred a little over a year earlier, there were detailed trial
transcripts, both sides filed a written motion on the issue, and the prosecutor
took notes, we found that a limited remand was appropriate.
In the
present case, as in Hutchins, voir
dire occurred a little over a year ago and there are detailed transcripts of
the voir dire. Thus, as in
to reconsider defendant’s Batson/Wheeler
challenge to the first two African-American jurors excused by the
prosecutor. On remand, we direct the
trial court to consider whether the defendant presented a prima facie case as
to these two jurors. If so, the court
should require the prosecutor to explain her challenges. If the prosecutor offers a race-neutral
explanation, the court must evaluate that explanation and decide whether
defendant has proved purposeful racial discrimination. If the court finds that, due to the passage
of time or any other reason, it cannot adequately address the issues at this
stage or make a reliable determination, or if it determines that the prosecutor
exercised her peremptory challenges improperly, it should set the case for a
new trial. If it finds the prosecutor
exercised her peremptory challenges in a permissible fashion, the trial court
should reinstate the judgment.
The judgment
is reversed and the cause is remanded to the trial court for reconsideration of
its ruling on the Wheeler/Batson
challenge. If the trial court finds that
it cannot adequately address the challenge or make a reliable determination, or
if it determines that the prosecutor exercised her peremptory challenges
improperly, the reversal is to stand and the trial court is ordered to set the
case for a new trial. If the trial court
determines that defendant has not met his burden of proving purposeful race
discrimination, the judgment shall be reinstated.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
SUZUKAWA,
J.
We
concur:
WILLHITE, Acting P. J.
MANELLA, J.
name="_ftn1" title="">[1]
prosecutor deleted a thirteenth alleged prior conviction.
name="_ftn2" title="">[2]
No. 33 is also referred to in the transcript as Juror No. 11.
