P. v. Liggins

Filed 4/4/08 P. v. Liggins CA3

NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

----

Defendant Phillip Liggins was charged with various drug crimes resulting from a search incident to arrest from a traffic stop. After a jury trial, defendant was found guilty of possession of a controlled substance, transportation of a controlled substance, and driving a motor vehicle upon a highway after having his license suspended or revoked. At a subsequent bench trial, defendants prior convictions were found true. Defendant was sentenced to 25 years to life in prison.

On appeal, defendant contends the trial court erred by denying his Wheeler/Batson^[1] motion as to two jurors. We find no error and affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In May 2005, Sacramento County Deputy Sheriff Duncan Brown was on patrol and followed a white Lincoln to a gas station. Defendant exited the Lincoln and entered the gas station. Deputy Brown checked the cars license plate number and was informed defendant had recently purchased the car. The Department of Motor Vehicles record showed defendants drivers license was suspended except for in the course of employment. After defendant left the gas station in the Lincoln, Deputy Brown pulled him over. Defendant exited his car, approached Deputy Brown, identified himself, and stated he was on his way home.

Deputy Brown searched defendant, finding a wad of cash and a plastic baggy that had some white powder in it. He then placed defendant in handcuffs, ordering him to stand next to the patrol car. Defendant took the baggy and smashed it between his fingers. Upon a subsequent search, Deputy Brown found another baggy in defendants pocket containing two rocks, which later were determined to contain cocaine.

DISCUSSION

I

Denial Of The Wheeler/Batson Motions

Defendant contends the trial court erred in denying his motion challenging the prosecutors peremptory challenges of two black jurors: Jurors Nos. 2 and 3.^[2] Neither Juror No. 2 nor Juror No. 3 were in the initial group of jurors; both were brought in as replacements after others had been dismissed. Juror No. 1 was seated on the panel before the attorneys began their questioning. Jurors Nos. 2 and 3 were seated in the jury box after the first round of peremptory challenges. Along with them, Jurors Nos. 4 and 5 were added as well. Juror No. 6 was added to the jury panel after Juror No. 2 was excused.

After Jurors Nos. 2 and 3 were peremptorily challenged by the prosecution, Juror No. 6, also a black male, was excused by the court for cause. He was excused due to his connections to law enforcement and his concerns about being able to judge defendant fairly given those connections. Neither party contends the court erred in excusing Juror No. 6; however, each references the chronology to help determine if there was a racial bias in the jury selection. The pertinent portions of the voir dire were as follows.

A

Juror No. 2

The prosecutor asked the prospective jurors if anybody here feel[s] that our criminal justice system treats African Americans differently than other races or people in our society? Several jurors responded that the disparities in treatment were because of economic reasons. Others stated they had no opinion.

Juror No. 2 replied, Yes. I dont feel that based on the overall that it is equal for all people. Like the young lady stated, if you have a lot of money, you can afford a better attorney or if you dont, you dont. But even some of the laws, I think theyre geared for either the poorer or richer class. [] You know, for instance like, you know, even cocaine. You know, they have one law for powder cocaine and one for crack. You can have an ounce of powder and have a lesser sentence for having, say, a gram of, you know something else. So in that case, you would have a person, most likely in a black community, have crack cocaine than have an ounce of, you know, cocaine, and based on that, you know, there are different laws for whomever decides to make them. [] You know, that does affect different classes differently based on their, you know, usually just their financial status.

After finishing voir dire, the prosecutor peremptorily challenged Juror No. 2. Defendant objected and brought a Wheeler challenge to the dismissal. Defendant argued the prosecutor had questioned Juror No. 2 [and] as soon as he got a little bit of information that he wanted, enough to excuse a black juror, that he did so. The court stated, [defendant] established some prima facie showing . . . but let me ask [the prosecutor] if -- just on the issue of the prima facie showing, why dont you respond.

The prosecutor stated, I would not have used my peremptory challenge to remove [Juror No. 2] but for his answers that he provided upon my questions. My questioning was do any of you believe that the criminal justice system treats African American people unfairly or differently. [] It wasnt society or it wasnt even the Court but the criminal justice system and [Juror No. 2]s statements and answers exceeded and expanded upon what some of the other jurors said. What [Juror No. 2] said was not only the economic reasons or economic factors as a reason for any disparity in treatment but he also went on to talk about the difference between crack cocaine and simple powder cocaine. [] As an example, where one person has an ounce of cocaine, powdered cocaine, versus somebody who has crack cocaine and that crack cocaine is a drug thats predominantly used in the African American Community. [] And as such that the law and the [L]egislature have treated it unfairly or differently in that situation. So he has given an example dealing with crack cocaine and cocaine and how African American jurors or that segment of society is treated differently in our criminal justice system. [] And in this case, the drug that we have involved here is indeed crack cocaine not powder cocaine. Not methamphetamine but indeed crack cocaine. And so the basis of my exclusion was in regards to his answers in that area, and that based upon his personal feelings and what he perceives as whatever knowledge he has, whether that be a little bit or a lot, will taint and affect his perception and view of how a case is prosecuted and how it is dealt with in the criminal system and how a particular African American individual may be dealt with because of that. [] And so it has nothing to do with race but [Juror No. 2]s answers. And I believe I have established a non-racial reason for my challenge of [Juror No. 2].

The trial court then stated, Well, I note that [Juror No. 2] was the -- actually the only person [who] attached race to any of the responses to the question. Everyone else seemed to be talking about financial position or things of that nature. I didnt hear anybody else talk about race other than [Juror No. 2]. So I dont find that there was a prima facie showing. [] Even if there was a prima facie showing, the People have established their reason other than race for his exclusion. If anybody established a race, anything about race, it was [Juror No. 2]. [] There is -- I also note that I think [another juror] was African American as well, and she was actually excluded by the defense. She was one of the early on prospective jurors in this panel.

B

Juror No. 3

After Juror No. 2 was seated, the judge questioned the new jurors regarding their experiences with the justice system. Juror No. 4 stated that defendant would not want a jury with 12 jurors like her on it. When asked why, she responded, Because I believe hes probably guilty. . . . [] . . . Because just from the charges that were read, I believe hes probably guilty. I think trials like this clog up the justice system. They should be pled out, and he probably should have done time served for the last year and been released. Gone on with it, and we shouldnt have wasted all these taxpayers time and energy sitting here wasting two and a half days for something that could have been pled out. The court dismissed her from the panel for cause.

The court then questioned Juror No. 5 about his experiences with law enforcement. During the questioning, Juror No. 5 stated, [o]ne other item is my friend, my good friend was -- we were in a city out of state. He was -- well, the story goes he was in the wrong part of town. He was taken by the local police officer, pistol whipped and thrown in jail, but eventually the charges were dropped.

After dismissing several other jurors, including Juror No. 1, the prosecutor dismissed Juror No. 3 using a peremptory challenge. After removing the jurors from the courtroom, the court stated, All right. Were out of the presence of the other prospective jurors, and the People just exercised a challenge to [Juror No. 3], who is an African American male. [] And [defense counsel] again had Wheelered the Prosecution, and at this point Im going to find a prima facie showing, so youre going to have to explain yourself.

The prosecutor replied, I used my peremptory challenge against [Juror No. 3] for several reasons. [] First of all, when one of the prospective jurors, I believe it was [Juror No. 4] . . . spoke with the Court about how cases at this level, drug possession cases are clogging up the court system and how they should go ahead and plead. [] I saw [Juror No. 3] . . . roll his eyes, shake his head and look over at [Juror No. 4]. [] He also had his mouth gaped in one moment as well, and he looked upset with her. The other juror -- there was another prospective juror, [Juror No. 1]. She was at the time seated in I believe seat number 11. [] And when [Juror No. 4] made those comments, I looked at all the jurors and their reactions, and [Juror No. 1] shook her head in disapproval at [Juror No. 4]s comment. [] I had removed [Juror No. 1] from the panel with my exercise of my peremptory challenge. Shes [C]aucasian not African American or minority. [] Furthermore, [Juror No. 3], when [Juror No. 5] spoke, [he] had mentioned how a friend of his was in a bad part of town and got picked on by the police. [] The moment that [Juror No. 5] mentioned bad part of town, I saw [Juror No. 3]s reaction. His face was frowning. He looked upset and angry and also shook his head at [Juror No. 5]s comments. [] My analyses and reason for exercising my challenge is that [Juror No. 3] seems to be sensitive towards certain issues and not patient or tolerant with the other jurors and their opinions. [] My job in regards to picking a jury, I want a jury that can get along, a jury that will be patient with each other, a jury that is tolerant, a jury that thats not going to be overly sensitive at every comment or expression stated by the other prospective jurors. [] If the jury gets angry and upset and is sensitive, that juror may become entrenched in their views or take an opposite view creating a possibility of a hung jury. [] My basis of exclusion for [Juror No. 3] and [Juror No. 1] was not based upon race but rather upon the reactions to questions that other jurors answered in the Courts question. [] And just for the record, there is another African American juror [who] is currently on the panel. I believe thats [Juror No. 6], and hes -- and I do not plan to excuse him in anyway from this panel in light of the questions that hes answered and his demeanor.

Defense counsel responded, Well, I wouldnt expect him to exclude [Juror No. 6]. He comes from a law enforcement family and his remarks were that he would probably favor law enforcement if one was testifying from the stand. [] Ill ask the Court -- or at least I noticed when that outburst came out of Juror . . . , if thats who it was, about how it was a waste of court time, I didnt see anything from [Juror No. 3]. But I did see other jurors smirk, tip their heads, back look at each other and make all kinds of reactions to that comment. [] That would be natural with the outburst that came out of that juror. To single out [Juror No. 3] as a result to that seems disingenuous to me, your Honor. [] The fact is that I have been watching the jury pretty cautiously looking for any kind of nuance that we can use in picking a jury. I didnt see any of the things that the Prosecution saw whatsoever. [] Im not saying he didnt see it, but I certainly didnt see it. The fact that somebody frowns over somebody making an outburst in court doesnt seem unreasonable to me. [] The fact of the matter is, were down to one African American in this panel, and hes pro-law enforcement. And I dont think that anything that the Prosecution has said amounts to a reason to exclude under Wheeler or the pursuing cases.

The court then questioned the prosecutor about his reasons for dismissing Jurors Nos. 1 and 3. The prosecutor explained that he had dismissed Juror No. 1 for the same reason [he] excluded [Juror No. 3]. It was her physical reaction. I looked at the jurors. Every single one of them I scanned from the top row to the middle and the bottom when that comment, that outburst came out. [] And I saw two reactions and two reactions only, and I noted those reactions down. The court then asked about Juror No. 5s comment. The prosecutor stated, And it was when [Juror No. 5] mentioned, and he was seated immediately to the left of [Juror No. 3], mentioned the word[s] bad part of town and talked about the scenario, I saw [Juror No. 3]s reaction. So it wasnt on just one reaction to a comment but on two reactions.

The trial court then found there had been a prima facie showing, but the People had stated sufficient grounds to overcome the Wheeler motion. However, the court cautioned the prosecutor, youre getting very close, and this is the situation where thats something I would -- Im actually very close to entertaining granting it. But based upon your representations that you are observing the reactions of these various jurors and their -- and youre excluding other folks for like reactions that I deny the motion.

II

The Court Did Not Abuse Its Discretion

In Denying The Motions

Prospective jurors may not be excluded from jury service based solely on the presumption that they are biased because they are members of an identifiable group distinguished on racial, religious, ethnic, or similar grounds. [Citations.] A defendant bears the burden of establishing a prima facie case of Wheeler error. [Citation.] If the court finds a prima facie case has been shown, the burden shifts to the prosecution to provide race-neutral reasons for the questioned peremptory challenges. [Citation.] The prosecutor need only identify facially valid race-neutral reasons why the prospective jurors were excused. [Citations.] The explanations need not justify a challenge for cause. [Citation] Jurors may be excused based on hunches and even arbitrary exclusion is permissible, so long as the reasons are not based on impermissible group bias. (People v. Gutierrez (2002) 28 Cal.4th 1083, 1122.) Once a trial court has made a sincere and reasoned effort to evaluate each of the stated reasons for a challenge to a particular juror, we accord great deference to its conclusion. (Id. at p. 1126.)

Defendant claims the trial court erred when it denied the Wheeler motions because: 1. it based its decision on an inadequate record; 2. it failed to recognize[] the prosecutors justification was a sham; and, 3. it upheld a challenge based on a[n] erroneous factual conclusion.

A

Juror No. 2

When defendant raised a Wheeler objection to the prosecutions excusal of Juror No. 2, the trial court expressly found no prima facie case. Nonetheless, the court allowed the prosecutor to state his reasons for the peremptory challenge on the record. Despite allowing the prosecutor to justify the challenge, the trial court did not, by that action, create a situation constituting an implied finding of a prima facie case. (People v. Davenport (1995) 11 Cal.4th 1171, 1200.)

It bears emphasizing that a match in the skin color between a defendant and a prospective juror does not preclude a peremptory excusal on grounds that the juror exhibited sympathy or bias either for or against the defendant who is of the same race. What Batson and Wheeler prohibit is excusal of a juror on the basis of group bias, i.e., the assumption that a member of a particular group will, because of such membership, harbor particular attitudes or biases. A party does not offend Batson or Wheeler when it excuses prospective jurors who have shown orally or in writing, or through their conduct in court, that they personally harbor biased views. (People v. Stanley (2006) 39 Cal.4th 913, 939-940.) We defer to the trial courts judgment that no prima facie case was established.

Defendant argues, however, that the trial court committed a factual error when upholding the challenge to Juror No. 2. While ruling on the Wheeler objection, the trial court stated, I note that [Juror No. 2] was the -- actually the only person [who] attached race to any of the responses to the question. . . . I didnt hear anybody else talk about race other than [Juror No. 2]. . . . [] . . . If anybody established a race, anything about race, it was [Juror No. 2].

Defendant seizes upon the last sentence to show the trial court committed factual error. He claims [t]he question presented to [Juror No. 2] asked if African Americans were treated differently in our justice system. The court ruled that if anybody established a race, anything about race, it was [Juror No. 2]. This is factually incorrect. The question itself was about race.

Viewing the trial courts entire statement, it is clear that the trial court was referring to the prospective jurors answers to the prosecutions question, not the question itself. The court stated, I note that [Juror No. 2] was the -- actually the only person [who] attached race to any of the responses to the question. . . . I didnt hear anybody else talk about race other than [Juror No. 2]. . . . [] If anybody established a race, anything about race, it was [Juror No. 2]. We do not find any factual error in the courts ruling. Therefore, we conclude the trial court did not err in denying the Wheeler motion regarding Juror No. 2.

B

Juror No. 3

Defendant argues the trial court erred by accepting the prosecutors use of body language to justify excusing Juror No. 3. Defendant argues this was a sham justification. To support this, defendant states, the prosecutor waited too long to make the challenge based on body language for that challenge to have any legitimacy. Had [Juror No. 3]s body language been a genuine basis for excusing him, the prosecutor would have brought the challenge immediately after making the observation; the prosecutor would not have waited until the very end of the jury selection process to excuse [Juror No. 3].

Although Juror No. 3s demeanor is not apparent on the face of the record on appeal, the trial court certainly was in a position to evaluate whether that factor could have played a legitimate role in the prosecutors peremptory challenge of Juror No. 3. [S]ubjective factors, not apparent on the record or easily articulable, may legitimately play a critical role in an attorneys exercise of a peremptory challenge. (People v. Jackson (1996) 13 Cal.4th 1164, 1249.) Further, [s]ince the trial court was in the best position to observe the prospective jurors demeanor and the manner in which the prosecutor exercised his peremptory challenges, the implied finding, that the prosecutors reasons for excusing [the prospective jurors], including the demeanor-based reason, were sincere and genuine, is entitled to great deference on appeal. (People v. Stanley (2006) 39 Cal.4th 913, 939.)

The timing of the prosecutors challenge does not compel us to overturn the trial courts finding that the challenge was not race-based either. An attorney may exercise peremptory challenges based on a jury as a whole, not just evaluating each individual juror in a vacuum. In People v. Wright (1990) 52 Cal.3d 367, our Supreme Court held [i]t is clear that knowledge of the composition of the entire panel can be relevant to the informed exercise of a peremptory challenge against a particular juror. (Id. at p. 397; see also In re Mendes (1979) 23 Cal.3d 847 [the Supreme Court held that a trial court did not err when it reopened jury selection and allowed the use of any unused peremptory challenges after the jury panel was accepted when one of the jurors was discharged due to a death in the family].)

We also note there was one remaining African-American juror on the panel, Juror No. 6, after Juror No. 3 was dismissed. While the fact that the jury included members of a group allegedly discriminated against is not conclusive, it is an indication of good faith in exercising peremptories, and an appropriate factor for the trial judge to consider in ruling on a Wheeler objection. (People v. Turner (1994) 8 Cal.4th 137, 168.) Juror No. 6 was eventually removed by the court due to his multiple connections to law enforcement. While Juror No. 6s presence until that point does not negate a Wheeler motion, it does suggest the prosecutor was looking at the individual jurors for their backgrounds and beliefs rather than solely their race.

Because there is substantial evidence in the record to support the trial courts findings, we conclude the court did not err in denying defendants Wheeler motions.

C

The Court Did Not Rule On An Inadequate Record

Defendant also contends the court made its ruling based on an inadequate record. Neither of the two excused African American jurors was questioned concerning any perceived bias they may have had. Without this factual foundation, the trial court could not properly have evaluated the justification offered by the prosecutor and could not have determined if the two jurors had been improperly excluded. As a consequence, the trial court erred even when measured against the strict standard of deference accorded it.

He argues the trial court erred when it denied the motion without examining any of the excused jurors, further questioning the prosecutor or allowing defense counsel to make a more detailed review. . . . [] [Juror No. 3] was never asked if he was rolling his eyes at the other jurors and, if so, why was he doing it. [Juror No. 2] was never asked what he meant by his statement in response to the question about the treatment of African Americans in the judicial system. Without the answers to these unasked question, the trial could not properly have determined if the prosecutors explanation was genuine or a sham -- any meaningful examination was impossible because of the severe lack of a factual foundation.

Defendants argument that the trial court must clarify a jurors response through further questioning is incorrect. Our Supreme Court held in People v. Jackson, supra, 13 Cal.4th at pages 1197-1198, that Wheeler does not require the trial court to conduct additional inquiry into the prosecutors race-neutral justification if it is satisfied from its observations that any or all of them are proper. Where . . . the trial court is fully apprised of the nature of the defense challenge to the prosecutors exercise of a particular peremptory challenge, where the prosecutors reasons for excusing the juror are neither contradicted by the record nor inherently implausible [citation], and where nothing in the record is in conflict with the usual presumptions to be drawn, i.e., that all peremptory challenges have been exercised in a constitutional manner, and that the trial court has properly made a sincere and reasoned evaluation of the prosecutors reasons for exercising his peremptory challenges, then those presumptions may be relied upon, and a Batson/Wheeler motion denied, notwithstanding that the record does not contain detailed findings regarding the reason for the exercise of each such peremptory challenge. (People v. Reynoso (2003) 31 Cal.4th 903, 929.)

The trial court made a sincere and reasoned evaluation of the prosecutors reasons. It asked for a race-neutral reason and questioned the prosecutor regarding that justification. It probed the circumstances leading to Juror No. 3s dismissal, and noted that the prosecutor had removed Juror No. 1 (a Caucasian woman) at the same time for the same reason.

While we recognize the trial court stated the prosecutor was getting very close to violating Wheeler, this supports the fact that the trial court was making a sincere and reasoned effort to evaluate the prosecutors reasons. After cautioning the prosecutor that he was close to violating Wheeler, the court did a further inquiry into whether the lawyers planned to dismiss any more jurors. The prosecutor specifically stated he would be exercising one more challenge, to another Caucasian woman.

DISPOSITION

The judgment is affirmed.

ROBIE , J.

We concur:

SCOTLAND, P.J.

NICHOLSON , J.

Publication courtesy of San Diego free legal advice.

Analysis and review provided by Santee Property line Lawyers.

San Diego Case Information provided by www.fearnotlaw.com

^[1]People v. Wheeler (1978) 22 Cal.3d 258; Batson v. Kentucky (1986) 476 U.S. 79 [90 L.Ed.2d 69].

^[2] For simplicity, we will refer to the jurors by number. The numbers are assigned chronologically by when each was added to the jury panel.