P. v. Smith
Filed 9/19/11 P. v. Smith CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIVE
| THE PEOPLE, Plaintiff and Respondent, v. JASON ANDREW SMITH, Defendant and Appellant. | B225202 (Los Angeles County Super. Ct. No. BA346302) |
APPEAL from a judgment of the Superior Court of Los Angeles County, Rand S. Rubin, Judge. Affirmed.
Jeralyn Keller, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lawrence M. Daniels and Colleen M. Tiedemann, Deputy Attorneys General, for Plaintiff and Respondent.
I. INTRODUCTION
Defendant, Jason Andrew Smith, appeals from his second degree murder conviction after a jury trial. (Pen. Code,[1] § 187, subd. (a).) The jury found defendant personally used a firearm. (§ 12022.53, subds. (b), (c), (d).) A 7-year old eyewitness testified defendant committed the murder. Defendant was sentenced to 40 years to life in state prison. Defendant contends the trial court erred in denying his motion to excuse the jury panel based on alleged discriminatory selection of jurors. (People v. Wheeler (1978) 22 Cal.3d 258, 287 (Wheeler); Batson v. Kentucky (1986) 476 U.S. 79, 89 (Batson).) We affirm the judgment.
II. BACKGROUND
The prosecutor, Deputy District Attorney David Barkhurst, used peremptory challenges to excuse three prospective Latino jurors. Deputy Public Defender Katherine Hardie made a motion to excuse the jury panel. The trial court, without expressly finding Ms. Hardie had stated a prima facie case, asked Mr. Barkhurst to state his reasons for the challenges.
Prospective Juror No. R5148, a single man, was self-employed as a sales associate and had no children. Six years earlier, when Juror No. R5148 was in high school, a friend had been murdered. Juror No. R5148’s mother and stepfather had both been arrested or charged with crimes in the past several years. The charges were resolved “with . . . classes” and community service. The prosecutor, Mr. Barkhurst, posed a hypothetical case involving a single witness to a crime. Juror No. R5148 did not think a single witness’s testimony without more would be sufficient evidence. In a rape case where only the victim testified and there was no physical evidence, Juror No. R5148 said he would vote to acquit. Juror No. R5148 later said, however, “If only one piece of evidence was presented, then yeah, that would be good enough for me.” Juror No. R5148 affirmed that he would be able to base a conviction on that state of the evidence. But Juror No. R5148 wanted to hear evidence from both sides of the case—prosecution and defense.
Mr. Barkhurst explained the decision to excuse Juror No. R5148: “He specifically stated that he would have a problem with just one witness to a crime and the court’s instruction as to being able to sustain a conviction even if you believe that witness. [¶] I understand that he equivocated and may have been rehabilitated, but he wasn’t a juror to be excused for cause. However, it caused me enough concern that I did not feel he would be a fair and impartial juror in this case. [¶] I also noted he was very young and also had no children. He also had earrings. And I specifically made a note that I was concerned whether or not he’d be able to relate to our child witness and be able to determine credibility one way or the other.”
Prospective Juror No. R4033, a postal employee, was a single man with no children from East Los Angeles. Three years earlier, Juror No. R4033’s step-brother had been arrested for driving under the influence. The case was resolved without a trial. Prospective Juror No. R4033 stated he would need some physical evidence to support testimony. When asked by Ms. Hardie whether he would need physical evidence in this case, Juror No. R4033 stated, “Yes.” As to Juror No. R4033, Mr. Barkhurst explained: “He specifically stated during questioning that he wanted physical evidence in the case in addition to witness testimony. He was also very young with no children. I noted that he had earrings and appeared relatively juvenile.”
Prospective Juror No. A0271, a computer technician from Cypress Park, was also single and had no children. Juror No. A0271 had an uncle and a cousin who worked at Wasco State Prison. More than five years prior, Juror No. A0271’s cousin had been accused or convicted of murder. Juror No. A0271 said, “I don’t know if he was convicted or accused of murder.” The cousin was serving time in Soledad State Prison. Juror No. A0271 had visited the cousin in prison. Ms. Hardie asked Juror No. A0271 about determining guilt where only a single witness testified: “Ms. Hardie: If you just hear, say, one story from one person, how do you know whether to believe that person [¶] Prospective Juror No. A0271: I think I want to hear both people, both sides. [¶] Ms. Hardie: Who do you mean by ‘both sides’ [¶] Prospective Juror No. A0271: Defendant and the other. [¶] Ms. Hardie: What if you’re told you don’t have to hear from [defendant] [¶] Prospective Juror No. A0271: I think it would be easier if I heard from both sides. [¶] Ms. Hardie: Well, would you still be able to render a verdict if you only hear from one side [¶] Prospective Juror No. A0271: Depending on what’s presented. You’re asking those questions that—we don’t know what’s happening, at least I don’t know what’s happening, so I get evidence and I’ll be able to put my opinion. [¶] Ms. Hardie: What I’m asking you is if the judge tells you that you don’t have to hear from the defense, do you think you can try—I know this is kind of in a vacuum without knowing what’s . . . going to happen, but do you think you can do that [¶] Prospective Juror No. A0271: Yeah, I think.” Juror No. A0271 stated he did not have any experience with young children. He had young cousins he saw every two weeks. They told untrue stories “[a]ll the time.” He could tell when they were telling stories “[b]ecause they giggle or they look a different way.” He thought he could use his life experience to tell if a child was telling the truth.
With respect to Juror No. A0271, Mr. Barkhurst said: “[H]e first stated that he didn’t know whether or not his cousin had been convicted of murder or not. He then went on to say that he visited that person in prison. [¶] One, that he was visiting his cousin in prison was of lesser concern to me than the fact with circumstantial evidence he couldn’t determine if a person was convicted and yet he knew this person who was in prison. That made me believe he wasn’t going to be able to judge circumstantial evidence very well.”
The trial court ruled: “The issue before the court is whether there is a strong likelihood that these jurors were struck due to a group association rather than a specific bias. [¶] I understand the People’s explanation. I don’t think that these are sham explanations. I think they’re genuine, and the Wheeler-Batson motion is respectfully denied.” The trial court noted that at the time the motion to excuse the jury panel was made, four Latino prospective jurors remained seated in the jury box.
III. DISCUSSION
Our Supreme Court has held: “The prosecution’s use of peremptory challenges to remove prospective jurors based on group bias, such as race or ethnicity, violates a defendant’s right to trial by a jury drawn from a representative cross-section of the community under article I, section 16 of the California Constitution and his right to equal protection under the Fourteenth Amendment to the United States Constitution. (Batson, supra, 476 U.S. at p. 97; Wheeler, supra, 22 Cal.3d at pp. 276-277.) These procedures apply when a defendant makes such an objection: ‘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.” [Citation.] 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 racial discrimination.” [Citation.]’ (Johnson v. California (2005) 545 U.S. 162, 168, fn. omitted; see also People v. Lancaster (2007) 41 Cal.4th 50, 74.)” (People v. Blacksher (Aug. 25, 2011) __ Cal.4th __, __ [2011 WL 3715536].) As our Supreme Court recently explained: “[T]he trial court is not required to explain on the record its ruling on a Batson/Wheeler motion. (People v. Reynoso [(2003)] 31 Cal.4th [903,] 919.) ‘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.’ (People v. Silva (2001) 25 Cal.4th 345, 386.)” (People v. Vines (2011) 51 Cal.4th 830, 849; accord, People v. Thomas (2011) 51 Cal.4th 449, 474-475.)
Our standard of review is as follows: “‘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.]”’ (People v. Lenix (2008) 44 Cal.4th 602, 613-614.)” (People v. Vines, supra, 51 Cal.4th at p. 848; accord, People v. Thompson (2010) 49 Cal.4th 79, 107.)
Defendant makes no argument with respect to steps one (prima facie case) or two (race-neutral justifications) of the analysis. With respect to step one, prima facie case, the trial court made no express finding. But the trial court did ask the prosecutor to state his reasons for the challenges. Hence, the court impliedly found defendant made a prima facie showing. (People v. Vines, supra, 51 Cal.4th at p. 849; People v. Fuentes (1991) 54 Cal.3d 707, 716.)
The Attorney General argues defendant failed to establish a prima facie case because male Latinos are not a cognizable group. We assume for purposes of our discussion that: male Latinos constitute a separate cognizable group for Batson purposes; male Latinos are distinct from Latinos and men generally; and defendant established a prima facie case. (See People v. Cleveland (2004) 32 Cal.4th 704, 734 [Black women are a cognizable group]; People v. Clair (1992) 2 Cal.4th 629, 652 [same]; see also People v. Bonilla (2007) 41 Cal.4th 313, 344 [“Whether or not Hispanic women constitute a separate cognizable group”]; People v. Garceau (1993) 6 Cal.4th 140, 171, disapproved on another point in People v. Yeoman (2003) 31 Cal.4th 93, 117-118 [“we assume that defendant is correct in asserting . . . that Hispanic-surnamed women constitute a ‘cognizable group’. . . .”].) With respect to step two, defendant does not challenge the adequacy of the prosecutor’s stated reasons for his peremptory challenges, “[Defendant] does not contend the prosecutor’s stated reasons failed to meet the minimal standard required for facial neutrality.”
Turning to step 3, defendant argues the trial court failed to conduct a sincere and reasoned assessment of Mr. Barkhurst’s proffered explanations for his peremptory challenges. First, defendant asserts Mr. Barkhurst inaccurately recited the responses of prospective jurors Nos. R5148 and R4033 and as a result, the trial court’s decision was not based on substantial evidence. We disagree. We have examined the record and conclude the prosecutor was accurate. Juror No. R5148 did say it would be impossible to convict based upon a single witness’s testimony without more. Juror No. R4033 expressed a refusal to convict a defendant of rape based on the victim’s testimony alone without physical evidence. That he later suggested otherwise did not change his initial responses. And Juror No. R4033 did say he thought he would need some physical evidence to corroborate the testimony of witnesses.
Second, defendant contends Mr. Barkhurst’s professed fear that Juror No. A0271 could not process circumstantial evidence was implausible. Further, defendant argues, “[T]he prosecutor’s insincerity is unmasked by the fact he did not ask [Juror No. A0271] a single question during voir dire.” As noted above, Juror No. A0271 seemed confused about whether a cousin had been merely accused or actually convicted of murder. Juror No. A0271 admitted visiting the cousin in prison. Juror No. A0271 was unsure about voting to convict without hearing from the defendant. On this record, the trial court could reasonably conclude Mr. Barkhurst could sincerely and legitimately have a concern about prospective Juror No. A0271’s ability to process the evidence and truthfulness.
Third, defendant contends Mr. Barkhurst’s objection to prospective jurors Nos. R5148 and R4033 on grounds they had no children was merely an excuse. As evidence childlessness was not a significant concern, defendant asserts: Mr. Barkhurst never asked any prospective juror a single question about children; although some prospective jurors failed to state whether they had children, Mr. Barkhurst did not inquire; at the time Ms. Hardie made the motion to excuse the jury panel, there were only 2 prospective jurors who had children in the jury box; only 2 of the 12 impaneled jurors were parents; and Mr. Barkhurst challenged only 4 other childless prospective jurors.
Defendant’s comparative analysis, raised for the first time on appeal, is without merit. (See Miller-El v. Dretke (2005) 545 U.S. 231, 236; People v. Lenix, supra, 44 Cal.4th at p. 613; People v. Gray (2005) 37 Cal.4th 168, 188-189.) As our Supreme Court has observed: “One of the problems of comparative juror analysis not raised at trial is that the prosecutor generally has not provided, and was not asked to provide, an explanation for nonchallenges. When asked to engage in comparative juror analysis for the first time on appeal, a reviewing court need not, indeed, must not turn a blind eye to reasons the record discloses for not challenging other jurors even if those other jurors are similar in some respects to excused jurors.” (People v. Jones (2011) 51 Cal.4th 346, 365-366.) Moreover, “[W]e are mindful that comparative juror analysis on a cold appellate record has inherent limitations. [Citation.] Experienced trial lawyers recognize what has been borne out by common experience over the centuries. There is more to human communication than mere linguistic content. On appellate review, a voir dire answer sits on a page of transcript. In the trial court, however, advocates and trial judges watch and listen as the answer is delivered. Myriad subtle nuances may shape it, including attitude, attention, interest, body language, facial expression and eye contact. ‘Even an inflection in the voice can make a difference in the meaning.’” (People v. Lenix, supra, 44 Cal.4th at p. 622; accord, People v. Booker (2011) 51 Cal.4th 141, 165-166; People v. Taylor (2009) 47 Cal.4th 850, 887.)
Further, as our Supreme Court noted in People v. Jones, supra, 51 Cal.4th at page 365: “An attorney must consider many factors in deciding how to use the limited number of peremptory challenges available and often must accept jurors despite some concerns about them. A party concerned about one factor need not challenge every prospective juror to whom that concern applies in order to legitimately challenge any of them. ‘Two panelists might give a similar answer on a given point. Yet the risk posed by one panelist might be offset by other answers, behavior, attitudes or experiences that make one juror, on balance, more or less desirable. These realities, and the complexity of human nature, make a formulaic comparison of isolated responses an exceptionally poor medium to overturn a trial court’s factual finding.’ ([People v.] Lenix, supra, 44 Cal.4th at p. 624.)” Here, each prospective juror was asked to respond, initially, to a posted list of questions including whether he or she had any children. There was therefore no need for Mr. Barkhurst to specifically question prospective jurors on that point. Moreover, it is apparent from the record, and the trial court could reasonably find, that Mr. Barkhurst was more concerned with the two childless Latinos’ responses to questions bearing on how they would evaluate evidence than he was about their childlessness. The trial court could reasonably conclude that childlessness was a lesser concern that, in the case of the two jurors at issue, merely tipped the balance toward excusing them. Additionally, Mr. Barkhurst’s objections to the two childless Latino prospective jurors, Nos. R5148 and R4033, was not just that they had no children but that each was also very young and wore earrings. Defendant has not shown that any other childless prospective juror who was not challenged by the prosecution was also very young or wore earrings. Substantial evidence supported the trial court’s rulings. Accordingly, the judgment must be affirmed.
IV. DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
TURNER, P. J.
We concur:
ARMSTRONG, J.
MOSK, J.
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