P. v. Loftin
Filed 3/20/13 P. v. Loftin CA2/7
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California Rules of Court, rule 8.1115(a), prohibits courts
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
SEVEN
>
THE PEOPLE, Plaintiff and Respondent, v. THOMAS JONATHAN LOFTIN, Defendant and Appellant. | B237075 (Los Angeles County Super. Ct. No. MA048066) |
APPEAL from
a judgment of the Superior Court
of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Los Angeles
County, John Murphy, Judge.
Affirmed.
A. William
Bartz, Jr., under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Lance E. Winters, Assistant Attorney General, Blythe J. Leszkay and Theresa A.
Patterson, Deputy Attorneys General, for Plaintiff and Respondent.
_____________
>
Thomas
Jonathan Loftin was convicted by a jury of attempted
grand theft by false pretense. On
appeal Loftin contends the prosecutor improperly excluded African Americans
from the jury when exercising peremptory challenges. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. The
Information
Loftin was charged in an amended
information with grand theft of personal property (count 1) (Pen. Code, § 487,
subd. (a)) and grand theft by embezzlement (count 2) (ibid.). He pleaded not
guilty and demanded a jury trial.
2. The
Trial
According to
the evidence at trial, in August 2008 Loftin agreed to repair and restore Juan
Veloz’s 1948 Chevrolet Fleetline Aerosedan for $13,900 with a $7,000 down
payment. Between August 2008 and January
2009 Loftin and Veloz modified the contract several times based on Loftin’s
representations that additional sums were needed to complete the repairs and
restoration. The last novation, in
January 2009, modified the contract price to $22,400. Veloz agreed to make additional payments
toward the new contract price prior to the completion of the work.
For a while
it appeared Loftin was working on the car:
In October 2008 Veloz received e-mails from Loftin with attached
photographs purporting to show the car had been sandblasted to remove rust and
powder coat had been applied to the frame.
However, after making a $5,000 payment to Loftin in January 2009,href="#_ftn1" name="_ftnref1" title="">[1] Veloz was unable to contact him. In addition, Veloz noticed his car was no
longer at Loftin’s shop.
In May 2009
Loftin told Veloz he could find his car at another shop in Palmdale, and the
two men arranged to meet. Loftin
demanded a further advance payment toward the $22,400 contract price; Veloz
refused. The meeting ended with Loftin
assuring Veloz the repairs would be completed in the next few months.
Several
months passed, and Veloz was again unable to reach Loftin or locate his
car. The shop where Veloz had last seen
the car was now vacant and a for-lease sign was posted on its window. In October 2009 Veloz successfully contacted
Loftin, who told Veloz his painter had absconded to Mexico
with $4,000 Loftin had paid him to work on the car. Loftin claimed he did not know what the
painter had done with Veloz’s car.
Later, Loftin told Veloz his car was in storage and it would cost Veloz
an additional $30,000 for the car to be repaired and restored. Loftin refused to tell Veloz where the car
was being stored.
In November
2009, after several unsuccessful attempts by Veloz and his attorney to locate
the car, Veloz contacted the Los Angeles County Sheriff’s Department. With the assistance of Deputy Sheriff Mark
Mechanic, in December 2010 Veloz located the car at a tow yard. The car was missing several parts. No work had been done on it since January
2009.
The People
asserted at trial that, no later than January 2009, Loftin knew he could not
restore the car in accordance with the contract and intentionally deceived
Veloz into giving him more money on the pretense it was needed to complete the
job. They also argued Loftin had stolen
more than $2,000 in parts from the car.
Veloz contended this was a simple contract dispute and there was no
intent to steal or defraud.
3. Voir
Dire
During voir dire defense counsel
moved to strike the entire jury panel contending the People’s use of their
peremptory challenges to exclude two African Americans from the jury
constituted racially motivated group bias in violation of Batson v. Kentucky (1986) 476 U.S. 79 [106 S.Ct. 1712, 90
L.Ed.2d 69] (Batson) and >People v. Wheeler (1978) 22 Cal.3d
258 (Wheeler), overruled in part by >Johnson v. California (2005)
545 U.S. 162, 168-173 [125 S.Ct. 2410, 162 L.Ed.2d 129].) The court denied the motion, finding Loftin
had failed to make a prima facie case the peremptory challenges were racially
motivated.
4. The
Verdict and Sentence
The jury acquitted Loftin of
grand theft by false pretense as charged in count 1, but found him guilty of
attempted grand theft by false pretense, a lesser included offense. The jury acquitted Loftin of embezzlement as
charged in count 2. Loftin was sentenced
to the upper term of 18 months on count 1 to be served in county jail. (Pen. Code, § 1170, subd. (h)(1) &
(2).)
DISCUSSION
1. Voir
Dire Proceedings
During voir dire defense counsel
discussed with the prospective jurors the concept of false accusations: “[W]e can all, as responsible citizens, make
our conduct what it should be under the law.
We can do what we are supposed to do.
But what happens when somebody accuses you falsely, they just lie to
you?†Juror 9 spontaneously stated, “Oh
yeah.†Later, defense counsel asked,
“What about the fact that Mr. Loftin is Black.
Does that cause a problem for anybody in this case?†Juror 9 asked, “How do we know he is
Black?†Asked by his lawyer whether he
was Black, Loftin said, “My birth certificate says yes.â€
Later in
voir dire the prosecutor presented the following hypothetical about
circumstantial evidence: “Let’s say
you’re sitting inside of a room and this room doesn’t have any windows, so,
basically, you can’t see what the weather is like
outside . . . . [A]
person walks into that room from the outside.
And when the person walks into the room, the person has a raincoat on,
and [is carrying] an umbrella. And as
that person is walking into the room, they are putting down the umbrella and
shaking the umbrella and there [are] drops of water . . . that are flying off
that umbrella. And on the raincoat,
there’s beaded up water that’s dripping off of the raincoat and you can’t ask
that person what the weather is like outside. . . . But, based upon what you’ve seen, based upon
the raincoat and the drops of water and the umbrella, can you say that you know
what the weather is like outside based on that?†One of the prospective jurors answered, “I’m
going to presume it was raining.â€
Defense
counsel proffered a different explanation for the prosecutor’s scenario: “One reasonable explanation, it is raining
outside. Another reasonable explanation
is somebody could have doused them with water from a firehose, right . . .
?â€
At his next
turn to ask questions to the prospective jury panel, the prosecutor turned his
attention to Juror 10: “I saw you
shaking your head yes when [defense attorney] was talking about . . . other
reasonable explanations for why the gentlemen comes in and he’s got the water
on his raincoat and got the water on his umbrella. Am I fair in saying that?†Juror 10 replied, “Yes.†After getting Juror 10 to acknowledge it
rarely rains in Lancaster, the prosecutor probed further: “So a person who is in Lancaster, walking
into a room with a raincoat on and an umbrella, do you think it’s reasonable
for a rational person like that to have, you know, been wearing a raincoat and
an umbrella in the first place and going outside in a raincoat and holding an
umbrella when it’s not a rainy day? Do
you think that’s reasonable?†Juror 10
replied, “It’s reasonable.†The
prosecutor continued: “Anything is
possible. . . . But is it reasonable to
think that the same person who is rational and reasonable was putting on a
raincoat, was carrying an umbrella, had the umbrella up and then was randomly
doused by somebody who was holding a bucket of water outside the room? Is that reasonable?†Juror 10 replied, “It’s gray. It’s gray.â€
The People
used their fourth peremptory challenge to excuse Juror 9 and later used
their sixth peremptory challenge to excuse Juror 10.href="#_ftn2" name="_ftnref2" title="">[2] At that point defense counsel requested a
side bar to raise a Batson/Wheeler objection
because both Jurors 9 and 10 were African American. Asked for an explanation, the prosecutor
stated he excused Juror 10 because, in the People’s view, there was no other
way to view the hypothetical presented other than the fact that it was
raining. Juror 10, he noted, had
“vehemently [shaken] his head up and down†in response to defense counsel’s
proffered explanation, suggesting he agreed strongly with the defense. The prosecutor explained, “I don’t want a
jury who I think at the [outset] accepts unreasonable interpretations of the
circumstantial evidence.â€
As to Juror
9, the prosecutor explained he found the juror’s comment, “How do we know he is
Black?†troubling because, to the prosecutor, the defendant was clearly African
American and the comment reflected a contrarian nature. The prosecutor stated, “I can never prove
something to him beyond a reasonable doubt when the defendant is pretty clearly
African American.†In addition, the
prosecutor took issue with Juror 9’s spontaneous exclamation “Oh yeah,†in
response to defense counsel’s statements concerning false accusations. To the prosecutor, it appeared Juror 9 was
partial to the notion of false accusations, and “I don’t want someone who is in
agreement with that kind of sentiment coming from the defense. So those are the People’s concerns.â€
The trial
court denied the motion, concluding Loftin had failed to establish a prima
facie case establishing group bias based on race in jury selection.
2. Governing
Law on Racially Motivated Peremptory Challenges
The exercise of peremptory
challenges to remove prospective jurors based on group bias violates both the
California and the href="http://www.adrservices.org/neutrals/frederick-mandabach.php">United
States Constitutions. (>People v. Ward (2005) 36 Cal.4th 186,
200, citing Wheeler, >supra, 22 Cal.3d at pp. 276-277 and >Batson, supra, 476 U.S. at p. 89.) The procedural and substantive standards
trial courts properly use when considering motions challenging peremptory
strikes are well-established: “‘“‘First,
a defendant must make a prima facie showing that a peremptory challenge has
been exercised on the basis of race[; s]econd, if that showing has been made,
the prosecution must offer a race-neutral basis for striking the juror in
question[; and t]hird, in light of the parties’ submissions, the trial court
must determine whether the defendant has shown purposeful
discrimination.’â€â€™â€ (>People v. Hamilton (2009)
45 Cal.4th 863, 898, quoting Snyder
v. Louisiana (2008) 552 U.S. 472, 476-477 [128 S.Ct. 1203, 170 L.Ed.2d
175].)
“[A]
defendant satisfies the requirements of Batson’s
first step by producing evidence sufficient to permit the trial judge to draw
an inference that discrimination has occurred.â€
(Johnson v. California, supra,
545 U.S. at p. 170.) In considering
whether a prima facie case was established, “certain types of evidence may be
especially relevant: ‘[T]he party may show that his opponent has struck most or
all of the members of the identified group from the venire, or has used a
disproportionate number of his peremptories against the group. He may also demonstrate that the jurors in
question share only this one characteristic—their membership in the group—and
that in all other respects they are as heterogeneous as the community as a
whole. Next, the showing may be
supplemented when appropriate by such circumstances as the failure of his
opponent to engage these same jurors in more than desultory voir dire, or
indeed to ask them any questions at all.
Lastly, . . . the defendant need not be a member of the excluded group
in order to complain of a violation of the representative cross-section rule;
yet if he is, and especially if in addition his alleged victim is a member of
the group to which the majority of the remaining jurors belong, these facts may
also be called to the court’s attention.’â€
(People v. Bonilla (2007) 41
Cal.4th 313, 342.)
“When the
trial court concludes that a defendant has failed to make a prima facie case,
we review the voir dire of the challenged jurors to determine whether the
totality of the relevant facts supports an inference of discrimination.†(People
v. Lancaster (2007) 41 Cal.4th 50, 74, citing Johnson v. California, supra,
545 U.S. at p. 168 & fn. 4.)
3. Loftin
Failed To Establish a Prima Facie Case for Group Bias in Jury Selection
Loftin
contends the People’s use of three of its six peremptories to excuse minority
jurors (two African Americans and one Hispanic juror) was statistically
sufficient, by itself, to establish a prima face case of discrimination, thus
shifting the burden to the People to establish race-neutral reasons for their
actions. At the threshold, Loftin’s
argument in the trial court was limited to the exercise of two peremptory
challenges to excuse African Americans.
By failing to raise it in the trial court, Loftin has forfeited any
argument the People used additional peremptory challenges to excuse minority
jurors generally. (People v. Lewis (2008) 43 Cal.4th 415, 481 [failure to assert a
particular Wheeler/Batson objection
results in forfeiture of issue on appeal].)
In any event, although a systematic pattern of exclusion is sufficient
to raise an inference of discrimination, “‘“[a]s a practical matter,â€â€™â€ a small
sample size in this case makes any inference of a pattern difficult to
discern. (People v. Bonilla (2007) 41 Cal.4th 313, 343 [when sample size is
small, the challenge of one or two jurors “‘“can rarely suggest a >pattern of impermissible exclusionâ€â€™â€]; >id. at p. 343, fn. 12 [no prima
facie case established by virtue of using two of five peremptory challenges
excluding the only two African Americans; “[s]uch a pattern will be difficult
to discern when the number of challenges is extremely smallâ€].)
Moreover,
any inference of group bias based on this statistic alone, to the extent one
arguably exists, is wholly eviscerated when considered together with the fact
one of the replacement jurors was also African American; and, in fact, one
third of the jury as finally selected was made up of African Americans. (See People
v. Turner (1994) 8 Cal.4th 137, 168 [“[w]hile 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 court to consider in ruling on a >Wheeler objectionâ€]; see, e.g., >People v. Gray (2005) 37 Cal.4th 168,
187-188 [“the exclusion of two African-American jurors and the retention of two
failed to raise an inference of racial discriminationâ€]; People v. Thomas (2012) 53 Cal.4th 771, 796 [when African Americans
constituted 26 percent of prospective jurors called into the jury box and the
prosecutor exercised 37 percent of his challenges (six out of 16) to excuse
African Americans, the disparity was “not significant enough, in itself, to
suggest discriminationâ€]; see generally People
v. Carasi (2008) 44 Cal.4th 1263, 1294 [“prosecutor’s pattern of excusals
and acceptances during the peremptory challenge process reveals no obvious
discrimination towards female jurors and is patently inconsistent with any such
inferenceâ€].)
The record
of voir dire also shows clear race-neutral reasons for excusing the two African
American potential jurors. When
presented with a hypothetical approximating the very definition of
circumstantial evidence articulated in CALCRIM No. 223,href="#_ftn3" name="_ftnref3" title="">[3] Juror 10 professed resistance to
the prosecutor’s argument that only one reasonable explanation existed. Similarly, Juror 9’s outburst, “Oh yeah,†in
response to the defense theory of false accusations could be interpreted by a prosecutor
to reflect that juror’s agreement with that defense theory.
In sum, the
voir dire provided the prosecutor with ample grounds for reasonably challenging
Jurors 9 and 10. Considering the record
as a whole, the
court did not err in concluding defense counsel had failed to make a prima
facie showing of race-based group bias in selecting a jury. (See People
v. Howard (2008) 42 Cal.4th 1000, 1018 [we must sustain trial court’s
assessment that defendant failed to make a prima facie case of racial
discrimination in the exercise of peremptory challenges “if, upon independently
reviewing the record, we conclude the totality of the relevant facts does not
give rise to an inference of discriminatory purposeâ€].)href="#_ftn4" name="_ftnref4" title="">[4]
DISPOSITION
The judgment is affirmed.
PERLUSS,
P. J.
We concur:
ZELON,
J.
JACKSON,
J.