P. v.
Filed 8/8/12 P. v. Berry CA1/4
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opinion has not been certified for publication or ordered published for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
FOUR
THE PEOPLE,
Plaintiff and Respondent,
v.
PARIS
WILLIAM BERRY,
Defendant and Appellant.
A132275
(Contra
Costa County
Super. Ct. No. 50909812)
Defendant
Paris William Berry appealed after he was convicted of
for shoplifting from two grocery stores.
He argues that the trial court erred in permitting the prosecutor to
exercise peremptory challenges to remove an African-American prospective juror
and an African-American prospective alternate juror based on their race, in
violation of Batson v. Kentucky
(1986) 476 U.S. 79, 89 (Batson)
and People v. Wheeler (1978)
22 Cal.3d 258 (Wheeler). We disagree and affirm.
I.
Factual and Procedural
Background
Because the evidence supporting
defendant’s convictions is not relevant to the limited issues raised on appeal,
we provide only a limited summary of facts (taken from the probation report),
and focus in detail below on the relevant portions of jury selection. In July 2009, defendant stole
merchandise from the same grocery store in Antioch
on three separate occasions. He also
stole merchandise twice from a grocery store in Pittsburg
that same month. Following a jury trial,
defendant was convicted of five counts of second degree burglary (Pen. Code,
§§ 459, 460, subd. (b)
name="_ftnref1" title="">[1]—counts 1,
4, 6, 8, 11), with an enhancement in connection with counts 4 and 11 for
personally using a firearm in the commission of the crimes (§ 12022.5,
subd. (a)); three counts of petty theft (§ 484—counts 2, 7, 9);
two counts of second degree robbery (§§ 211, 212.5,
subd. (c)—counts 3, 10),
name="_ftnref2" title="">[2]
with an enhancement for personally using a firearm in the commission of the
crimes (§ 12022.53, subd. (b)); and two counts of being a felon in
possession of a firearm (former § 12021, subd. (a)(1)—counts 5,
12).
Defendant
was sentenced to 13 years in prison, and this timely appeal followed.
II.
Discussion
Applicable
Law.
A
prosecutor may not use peremptory challenges to remove prospective jurors
solely because they are members of an identifiable racial group. (Batson,
supra, 476 U.S. at p. 89;
whether the defendant has made a prima facie showing that the prosecutor
exercised a peremptory challenge based on race.
Second, if the showing is made, the burden shifts to the prosecutor to
demonstrate that the challenges were exercised for a race-neutral reason. Third, the court determines whether the
defendant has proven purposeful discrimination.
The ultimate burden of persuasion regarding racial motivation rests
with, and never shifts from, the opponent of the strike. [Citation.]”
(People v. Lenix (2008) 44 Cal.4th
602, 612-613 (Lenix); see also
168-170 (Johnson).)
“A
prosecutor asked to explain his conduct must provide a ‘ “clear and
reasonably specific” explanation of his “legitimate reasons” for exercising the
challenges.’ [Citation.] ‘The justification need not support a
challenge for cause, and even a
“trivial” reason, if genuine and neutral, will suffice.’ [Citation.]
A prospective juror may be excused based upon facial expressions,
gestures, hunches, and even for arbitrary or idiosyncratic reasons. [Citations.]
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. [Citation.] Certainly a challenge based on racial
prejudice would not be supported by a legitimate reason.” (Lenix,
supra, 44 Cal.4th at p. 613,
original italics; see also Johnson,
“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.’ ” (Lenix,
supra, 44 Cal.4th at
p. 613.) “When the prosecutor’s
stated reasons are both inherently plausible and supported by the record, the
trial court need not question the prosecutor or make detailed findings. But when the prosecutor’s stated reasons are
either unsupported by the record, inherently implausible, or both, more is
required of the trial court than a global finding that the reasons appear
sufficient.” (People v. Silva (2001) 25 Cal.4th 345, 386; see also
826, 842.)
“Review
of a trial court’s denial of a Wheeler/Batson
motion is deferential, examining only whether substantial evidence supports its
conclusions. [Citation.] ‘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.]’ [Citation.]” (Lenix,
supra, 44 Cal.4th at
pp. 613-614; see also People v. Fiu
(2008) 165 Cal.App.4th 360, 391-392.)
Prospective
Juror M.F.
Jury
selection began on February 2,
2011. Prospective juror
M.F., a 22-year-old African-American man who lived at home with his parents and
an aunt, stated that he had recently resigned from two jobs he held, and that
he planned to become a full-time student the following fall “in film, fashion
and merchandising.” He previously had
worked at his godfather’s sports management company for several years, but he
decided to enter the “fashion and business” field. He was currently traveling and working on his
clothing line.
M.F.’s
cousin worked for the
Francisco Police Department, and his grandmother retired from the same
department. He told the trial court that
his relationships with those relatives would not make it hard for him to be fair
in the case, and he agreed to listen to all the evidence presented, and decide
the case based on that evidence.
When
asked whether M.F. or anyone close to him had ever been a witness to, or the
victim of, a crime, or charged with a crime, M.F. responded: “I came from a rough neighborhood, so I’ve
been multiple times a victim of robberies and stuff like that. One was I got into an accident. I don’t know if it was a prank or joke. They tried to rob me for my motorcycle, and
it caused me to get into an accident where I pierced my neck on a fire
hydrant. Nearly died. [¶] But coming from that neighborhood,
it’s typical to be in those situations.
And I grew up—I grew out of it, and it doesn’t bother me. I’m used to it. I live in a better neighborhood now. So just multiple times. And I have friends that have been—you know,
do crimes. It doesn’t bother me.”
The
prosecutor later asked M.F. for more detail about the
earlier, three people were involved, and M.F. never had to testify in the case
because the people involved died in an accident. M.F. provided a detailed description of the
incident, which we quote in full: “Just
a regular day, and me and my friends were riding on my motorcycle around the
neighborhood. Guys were in a
vehicle. I remember I stopped ’cause I
thought there was something wrong with my bike, and they were in their car,
sitting in their car. And they asked me
questions about my bike. Where did I get
it What kind of bike it was
“And
when I—one of them told me he liked it, and he pulled out a gun. He didn’t get out the car [
He pulled out a gun and, you know, told me to come up off the bike. And from then, I thought he was—he pulled out
a gun. He’s smiling and giggling and
laughing. He’s doing like some kind of
practical joke, so I didn’t know what to do.
“And
I proceeded like I’m not going to pay you no mind. Nothing to me. Guy’s just trying to scare me. So I just rolled off, and next thing I see
them following me. And I started taking
off. Next thing I know bullets are flying,
and I was going into the opposite way of traffic. So hit my brakes going downhill and hit a
curb, and I crashed my bike and I went flying off forward into a fire
hydrant. It was right in the way, and it
stopped me, piercing me in the neck.
“And
so all I remember was shots were fired.
I hear cars. Next thing I hear my
friend coming down the hill on his bike and cars, like a big crash around the
corner. And that was it.” M.F. worked with the police in their
investigation of the incident, and he was at first frustrated that the case
never went to a jury trial. He explained
that “I wasn’t looking towards like trial or anything. When something happens to you out of
frustration, a lot of times you’re not looking for a trial or anything. You’re looking for retaliation, just to be
honest. [¶] I don’t like nobody
messing with me, you know I’m not
saying I’m the type of person to commit a crime. I’m just saying I’m standing up for myself,
basically, before I rely on anyone else or the system. If it does—if it was to have to come to trial,
then that’s what it is. You know, as far
as I know, it is what it is.” M.F.
reported that he had “learn[ed] how to deal with it,” and had “turn[ed] a
negative into a positive.”
Later
that day, the trial court and counsel for both sides discussed prospective
jurors. The court asked if either side
challenged M.F. for cause, and the prosecutor responded, “No, after he woke
up.” The court replied, “He came back to
life.”
On
the second day of jury selection, the prosecutor exercised a peremptory
challenge of M.F., without objection from the defense attorney.
Questioning
of Prospective Alternate Juror P.T.
On
the third day of jury selection, during the selection of alternate jurors, the
trial court questioned P.T., an African-American man with two adult children
who lived out of state. P.T. stated that
he worked at a hospital in a different county as a “logistics person” who
ordered medical supplies for patient care.
When asked whether he could think of any reason why he could not be a
completely fair and impartial juror, P.T. responded that he was concerned about
how jury service would affect his job.
He was unsure whether he would continue to get paid if he were to serve
as a juror, and he was not sure if his “brand new boss” would know. He also reported that he had requested a
postponement of jury service the previous October at his boss’s request.
P.T.
stated that he had once been a witness to a crime, when he saw a shotgun blast
come from a car double parked in front of the building where he taught martial
arts. When asked if anything P.T.
witnessed would make it hard for him to be a fair juror, P.T. stated that it
was “[n]ot an issue about being fair.
Just a matter of knowing that, for what I do in life and death, health
care and martial arts, I’m opposed to hand weapons period. I don’t own one myself.” When asked by the trial court if he thought
he could follow the law and not vote in favor of guilt just because he did not
believe in weapons, P.T. answered, “I would be partial [sic], but my only concern is, because of my profession, I have deal
[sic] with kids in the community, and
I wouldn’t want repercussions coming my way because my face is known.” P.T. added that he would be objective.
P.T.
described in detail a recent negative experience with law enforcement: “This past weekend, in El
Cerrito, coming out of a Walgreens store, there was an
interracial couple getting out of their vehicle. And I saw a police car, all to the side. And these people just parked there and going
inside. As I’m trying to turn in, the
police officers decided to go around and check the tags or whatever. Before I could drive off, a second car showed
up. [¶] My assumption is, whether
they know this car was a suspect, it was pointless. A couple just got out of the car. There was a second car showing up for
whatever reason when they just drove into the parking lot. So my concern is, I don’t have that much
experience—bad experience with law enforcement.
I do have friends and former students that are on the police department
out of Richmond. It’s just that I see things, and sometimes I
say something and sometimes I don’t.”
The trial court told P.T. that police officers likely would testify in
the case, and P.T. stated that he “wouldn’t know them and would just have to
judge the facts as it is,” and that he would be impartial.
The
prosecutor later asked P.T. whether his experience at Walgreens would affect
him when he listened to a police officer’s testimony. P.T. answered: “Once—once again, I said I’m objective, but
due to my life experiences, being from the South, and just being objective on
what I see and what I choose to participate in of a situation, where I was on
the side of giving information to law enforcement on the things I’ve seen. But on this particular occasion, the issue
was my observation was suspicious to the nature of the event itself.” In response to the prosecutor’s question as
to why he was suspicious, P.T. responded, “Like I said, my background is from
the South, and the issue was I was leaving the parking lot, and this couple
showed up, got out of their car, going to hold hands and go into the
store. I guess they were in love with
each other. That’s none of my
business. It was interracial. The fact that the police car was sitting all
to the side observing them made me suspicious of their intent, only because there
was one car, but before I left, a second car showed up. [¶] So, you know, people that was out of
the car, they knew nothing that was going on the outside at that particular
time. There’s no reason for me to stick
around and participate ’cause any repercussions on my end, maybe seeing
something that shouldn’t have happened.”
The
prosecutor also asked about whether P.T. was frustrated with law enforcement’s
handling of the shooting near where he taught martial arts, and P.T. stated
that “part of the investigation that dealt with me, I was satisfied with
because we could only give information on what we heard or saw at that time.”
D.
Batson/Wheeler Motion.
After
the prosecutor later exercised a peremptory challenge of P.T., defense counsel
made a motion pursuant to Batson,
was based upon P.T.’s race. Counsel
argued that P.T. was only the second African-American prospective juror (the
other being M.F.) who had survived a challenge for cause, and both P.T. and
M.F. had said things to indicate that they would favor the prosecution, such as
M.F.’s revelation that he had been the victim of a robbery. As for P.T., defense counsel argued that he
could see “no reason, other than race, why he would be excused.”
The
trial court concluded that the defense had established a prima facie case that
the prosecutor’s peremptory challenges of both M.F. and P.T. were based upon
race, noting that defendant and both challenged jurors were
African-American. The court directed the
prosecutor to state the reasons for his challenges.
As
for P.T., the prosecutor stated that he sought to excuse the prospective
alternate juror “for the reasons and the lens in which he views police action toward
minorities. [¶] The fact is an
interracial couple showed up at Walgreens, and a police officer was
nearby. According to [P.T.], he was
suspicious of the police officer. He was
suspicious of their intent.” The
prosecutor added that he excused P.T. for the same reason that he had excused
“a young Caucasian juror with blonde hair,” who had speculated that a friend
was arrested for being drunk in public “because of some sort of immigration
[issue]. She saw the defendant and said,
well, there might be some race undertones going on here.”
viewed police action “through a race lens,” suspecting officers of “profiling
certain people, particular races, and because of that, [P.T.] has a distrust of
the police officers.” The story P.T.
told about the incident at Walgreens “seemed pretty innocent on its face,”
according to the prosecutor, but P.T. “read a lot into it, especially related
to what’s going on inside the minds of the police officers.”
As
for M.F., the prosecutor offered three reasons for the peremptory challenge.
and the prosecutor tended to challenge people who work in “some sort of
creative arts industry,” which is why the prosecutor also excused another juror
who was “involved in [a] rock n’ roll music school.”
search on the first 18 people called as prospective jurors, and his search
revealed that M.F. had a “Twitter account where he was referring to the N word
to African Americans. He was talked [
his fashion line of work.” Third, the
prosecutor did not find the story that M.F. told about being robbed to be
believable: “The fact that he fell into
[a] fire hydrant and somehow the other two people died, I didn’t find that
story particularly believable, and because of that, going on his occupation, as
well as the language used, the reference to illicit behavior on his web pages,
I excused [M.F.]”
Defense
counsel stated that he had not seen M.F.’s Twitter page. As for P.T., defense counsel emphasized that
although the prospective alternate juror had described an incident involving
police officers at Walgreens, he had also mentioned that he had worked with law
enforcement, that he had friends who were police officers, and that “[h]e’s not
scared of police. He just found that,
based upon his experience, to be a little suspicious.” Defense counsel stressed that P.T. did not
say that all police officers are motivated by race, and that counsel thought
that it was “specious to bring it up now, that one incident where he was
forthright in saying I saw something disturbing to me; I don’t see that every
time I see officers pull people over.”
The
trial court denied defendant’s Batson/Wheeler
motion as to both prospective jurors, finding that there were sufficient
race-neutral reasons for both peremptory challenges. The court stated: “I recall specifically [P.T.]’s description
of the event that occurred outside the Walgreens in El Cerrito: That he saw this couple—he mentioned they
were interracial—get out of their car seemingly unknowing that there was a
police car parked somewhere nearby that seemed to be watching them, and then
another police car pulled into that lot, and he jumped to the conclusion, in my
opinion, from the way he described it, that something untoward was going on
because of the fact that it was an interracial couple. [¶] There was nothing about that he
stayed around to see anything further.
There was no contact between the police and this couple that he
described. And it seemed to be that his
initial suspicion was because of the interracial nature of the couple, the
police were somehow going to investigate what was going on and basically
discriminate against them because of their relationship. [¶] He mentioned they were holding
hands, seemingly in love. And the whole
nature of his discussion struck me as an initial suspicion upon seeing the
police that they were being racist in their involvement. And I believe that is sufficient to support a
peremptory challenge.” The trial court
did not specifically address the stated reasons supporting the challenge of M.F. P.T. thereafter was excused from the panel.
On
appeal, defendant renews his objection to the exercise of peremptory challenges
as to both M.F. and P.T.
No Batson/Wheeler
1. Prospective
juror M.F.
As
for M.F., defendant argues that because one of the three reasons given for
excusing him (the fact that the prosecutor did not find M.F.’s account of a
robbery believable) was inherently implausible and did not withstand scrutiny (
“evaluate and make findings with respect to whether the other two reasons given
were supported by the record.” (E.g.,
478-479, 485-486 [where prosecutor offered two reasons for peremptory strike of
African-American prospective juror and it was unclear upon which reason trial
court relied, fact that one reason did not withstand scrutiny required reversal
of judgment].) We disagree.
“The
proper focus of a Batson/Wheeler
inquiry, of course, is on the subjective genuineness
of the race-neutral reasons given for the peremptory challenge,
So, for example, if a prosecutor believes a prospective juror with long,
unkempt hair, a mustache, and a beard would not make a good juror in the case,
a peremptory challenge to the prospective juror, sincerely exercised on that
basis, will constitute an entirely valid and nondiscriminatory reason for exercising the challenge. [Citation.]
It matters not that another prosecutor would have chosen to leave the
prospective juror on the jury. Nor does
it matter that the prosecutor, by peremptorily excusing men with long unkempt
hair and facial hair on the basis that they are specifically biased against him
or against the People’s case or witnesses, may be passing over any number of
conscientious and fully qualified potential jurors. All that matters is that the prosecutor’s
reason for exercising the peremptory challenge is sincere and legitimate,
legitimate in the sense of being nondiscriminatory. ‘[A] “legitimate reason” is not a reason that
makes sense, but a reason that does not deny equal protection. [Citations.]’
[Citation.]” (
924 (Reynoso), original italics [no
accepted prosecutor’s nondiscriminatory reasons for peremptory challenge, but
did not comment on one of them, Reynoso
at pp. 911, 913].)
The
prosecutor here repeatedly asked M.F. for more detail about his involvement
with law enforcement regarding the robbery.
When the prosecutor asked if M.F. worked with police officers on the
investigation, this exchange took place:
“A. Yeah.
They [the police officers] asked me typical questions like what
happened, what I was just saying, exactly what happened. And I can’t remember much, you know, but—
“Q. How long did that investigation go on
for
“A. A little over a year because they were
into a bunch of other stuff supposedly, I guess the guy with the gun that they
used and details of the car and descriptions of the guys. And it was three of them. I remember that it was three of them. There was a lot of multiple other robberies.”
M.F.
had reported that he “[n]early died” as a result of the crime, meaning that it
presumably was a major, traumatic event in his life, yet he could not “remember
much” about the ensuing investigation.
M.F. also described the incident as a “practical joke,” even though
shots were fired, and a suspect in the incident apparently was involved with
several other robberies. Although these
might be considered “ ‘ “trivial” ’ ” potential
inconsistencies (Lenix,
fact that the prosecutor did not believe that two people involved in the
robbery died “in an accident” withstands scrutiny and is not
Indeed,
defendant points to nothing in the record to contradict the prosecutor’s
disbelief of M.F.’s story regarding the robbery. Even if the prosecutor was mistaken about the
accuracy of M.F.’s story, and ended up passing over a qualified juror based on
a reason that was not objectively reasonable, these are insufficient grounds to
reverse based on Batson/Wheeler. (Reynoso,
supra, 31 Cal.4th at
p. 924.) The prosecutor could rely
on his “hunch[]” that M.F.’s description of the incident was not entirely
accurate. (Lenix, supra, 44 Cal.4th
at p. 613.) Although it is true, as
defendant argues, that the prosecutor thanked M.F. for his “honesty,” this
comment was made in response to M.F.’s reactions to criminal charges against
M.F.’s friends, and not against the
people who tried to rob him.
Defendant
likewise does not direct this court to anything in the record that contradicts
the other two nondiscriminatory reasons given for peremptorily challenging
M.F. He claims the fact that the
prosecutor did not challenge M.F. for cause over the statements on his Twitter
account “casts a considerable amount of doubt” on the genuineness of those
reasons. As respondent points out,
however, using the “N word” and describing the sale of drugs on the Internet
are not grounds for a challenge for cause.
(Code Civ. Proc., § 225, subd. (b)(1)(A)-(C).)
Citing
People v. Long, supra, 189 Cal.App.4th 826, defendant also claims that the
prosecutor should have been required to provide more specific information
regarding M.F.’s Twitter account.
here, the reporter’s transcript revealed that one reason given by the
prosecutor for a peremptory challenge was “demonstrably false.” (Id.
at p. 843.) The prosecutor also
stated that a prospective juror was excused based in part on his “ ‘body
language,’ ” without providing specific examples. (Id.
at p. 847.) The court concluded
that this statement was a general, nonverifiable utterance, which was not
worthy of credit. (Ibid.) Here, by contrast,
the prosecutor provided specific reasons why he found M.F.’s Twitter account
objectionable.
title="">[6]
Defendant
also claims that M.F. was not “comparable” to the music school business manager
the prosecutor identified as also having been peremptorily challenged for
working in the “creative arts industry.”
However, the prosecutor did not focus on whether the two prospective
jurors held comparable positions in their fields, only that they both worked in
the same general type of industry.
In
sum, the trial court did not err in denying defendant’s Batson/Wheeler motion as to prospective juror M.F.
2. Prospective
alternate juror P.T.
As
for prospective alternate juror P.T., defendant “disagrees with the trial
court’s evaluation” of P.T.’s reaction to the incident he described at
Walgreens, and claims that the prosecutor “jump[ed] to an unwarranted
conclusion” that P.T. “distrust[ed] police officers because they’re all
racist.”
certain extent, the discussion regarding the stated reason for the challenge to
P.T. Although the prosecutor referred to
the “lens in which he [P.T.] views police action toward minorities,” it is
clear from a review of the entire discussion that the prosecutor and the court
focused primarily on the specific incident at Walgreens described by the
prospective alternate juror, which was a legitimate reason to exercise a
peremptory challenge. (
28 Cal.4th 1083, 1125 [“A prospective juror’s negative experiences with
law enforcement can serve as a valid basis for peremptory challenge”].) Moreover, a prosecutor may excuse a
prospective juror who belongs to a protected group based on the prospective
juror’s stated individual biases or attitude, even if the biased attitude “may
be more widely held inside the cognizable group than outside of it.” (People
v. Lewis and Oliver (2006) 39 Cal.4th 970, 1016.)
Second,
defendant essentially focuses on the objective reasonableness of the
prosecutor’s stated reason for challenging P.T.
Again, however, our focus is on the subjective genuineness of the
nondiscriminatory reasons given for a peremptory challenge, not on their
objective reasonableness. (
We give deference to the trial court’s conclusion that the prosecutor’s
reason was bona fide where, as here, the trial court made a sincere and
reasoned effort to evaluate the prosecutor’s justification. (People
v. Fiu, supra, 165 Cal.App.4th at
pp. 391-392.)
III.
Disposition
The abstract of judgment shall be
modified to describe defendant’s conviction on count 10 as being for
second degree robbery, not second degree burglary (ante, fn. 2).
>
The trial court is
directed to prepare an amended abstract of judgment, and a certified copy of
the modified abstract shall be forwarded to the
Rehabilitation. The judgment is
otherwise affirmed.
_________________________
Sepulveda,
J.*
We concur:
_________________________
Ruvolo, P. J.
_________________________
Rivera, J.
*
Retired Associate Justice of the Court of Appeal, First Appellate
District, Division 4, assigned by the Chief Justice pursuant to article VI,
section 6 of the California Constitution.
name="_ftn1" title="">[1]
All statutory references are to the Penal Code unless otherwise specified.
In reviewing the record, we discovered an unraised clerical error. (People v. Mitchell (2001) 26 Cal.4th
181, 186-188.) Defendant was charged in
count 10 with second degree robbery (§§ 211, 212.5, subd. (c)),
the verdict form states that his conviction on count 10 was for second
degree robbery, and the minute orders following both defendant’s convictions
and his sentencing hearing show that defendant’s count 10 conviction was
for second degree robbery. However,
although the abstract of judgment lists the correct statutes for defendant’s
conviction on count 10 (§§ 211, 212.5, subd. (c)), the abstract
describes the conviction as being one for second degree burglary. To avoid any
potential confusion over this conviction in the future, we order the abstract
of judgment to be corrected to describe defendant’s conviction on count 10
as being for second degree robbery.
