P. v. Vale
Filed 9/19/13 P. v. Vale CA6
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opinion has not been certified for publication or ordered published for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
SIXTH
APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and
Respondent,
v.
JESSE JOHN VALE,
Defendant and
Appellant.
H037358
(Santa Clara
County
Super. Ct.
No. FF930718)
Defendant
Jesse John Vale was convicted, by jury trial, of
and second degree robbery (§§ 211,
212.5, subd. (c)). He admitted that he
had four prior convictions that qualified as strikes (§§ 667, subds. (b)-(i),
1170.12), that he had three prior serious felony convictions (§ 667, subd.
(a)), and that he had served a prior prison term (§ 667.5, subd. (a)). He was sentenced to an aggregate prison term
of 42 years to life for the carjacking, with a concurrent aggregate term of 40
years to life for the robbery.
On appeal,
defendant contends the trial court erroneously denied his Batson/Wheeler motion, which contested the prosecutor’s use of
peremptory challenges to remove two prospective jurors with Hispanic
surnames. (See Batson v. Kentucky
(1986) 476 U.S. 79 (Batson); People v. Wheeler (1978) 22 Cal.3d
258 (Wheeler).) For the reasons
stated below, we disagree with defendant’s claim and will, therefore, affirm
the judgment.
Background
As the
facts of defendant’s offenses are not relevant to the issue he raises on
appeal, we provide a brief overview based on the probation report’s summary of
the offense.
On May 21, 2009, Elijah Pipkin reported
that he had been the victim of a carjacking and a robbery. Pipkin had given a woman named Sophia a ride
to a Gilroy residence. At the residence, defendant got into Pipkin’s
vehicle and took the keys from the ignition.
Defendant punched Pipkin and ordered him out of the car. Pipkin complied. Defendant then asked Pipkin for his necklace,
bracelet, sunglasses, and wallet. Pipkin
gave defendant the necklace, bracelet, sunglasses, and $80 cash from the
wallet. Defendant tossed Pipkin’s car
keys to a second male, who got into Pipkin’s vehicle and drove away with
Sophia. Defendant drove away in another
vehicle.
Discussion
As noted
above, defendant raises one claim on appeal:
that the trial court erroneously denied his Batson/Wheeler motion, which contested the prosecutor’s use of
peremptory challenges to remove two prospective jurors with Hispanic surnames.
A. Proceedings Below
Voir dire
of prospective jurors began on February
23, 2011. The first group of
18 prospective jurors included two male prospective jurors with the
surnames Perez and Espinoza.
1. Prospective Juror Perez
Perez
stated that he was a custodian, that he lived with his parents, and that he had
siblings in high school and college. He
had no children, and he had never served on a jury. He had lived in Morgan
Hill for 13 years.
The
prosecutor asked Perez where he had gone to high school and where his sister
attended school. The prosecutor also
asked Perez about his job history. Perez
indicated he had been doing custodial work for about five months. The prosecutor asked, “What did you do before
that?†Perez responded, “Go to school,â€
referring to his high school. The
prosecutor asked, “Did you just finish up there last year?†The record is unclear as to whether Perez
responded to the question – the reporter’s transcript reflects that his
response was “High school,†but it appears this was a continuation of his
response to the prosecutor’s prior question.
In response to further questions, Perez testified that after high
school, he lived at home and “[t]ried to get a job.â€
2. Prospective Juror Espinoza
Espinoza
stated that he worked for an energy office.
He lived with his wife, daughter, and son-in-law. He had five grandchildren, had lived in
Gilroy for six years, and had never served on a jury.
After the
trial court asked the prospective jurors whether they had any relatives
or friends who had been accused of committing a violent crime, Espinoza
stated that his nephew was “in for murder right now.†He explained that his nephew was incarcerated
at Corcoran State Prison and that the incident had occurred in Tulare
County in 2005. Espinoza indicated he had
not communicated with his nephew during or after the prosecution. When asked whether he had any reason to
believe the case had been handled inappropriately, Espinoza replied, “Well, I
think he’s still going to court for it right now, so that’s as far as I can
answer on that.†He did not believe that
the incident would affect his ability to be impartial.
The
prosecutor’s only question to Espinoza was a request that he clarify “the
relationship between you and the person who is incarcerated.†After Espinoza stated, “That’s my nephew,â€
the prosecutor asked him no further questions.
3. Peremptory Challenges
The
prosecutor used his first peremptory challenge to excuse Perez. Defendant used his first peremptory challenge
to excuse another prospective juror with a Hispanic surname. After the prosecutor used his third
peremptory challenge to excuse Espinoza, there was an unreported bench
conference.
At the next
break, the trial court asked if trial counsel wanted to put anything on the
record. Trial counsel asserted that “a
jury of [defendant’s] peers is just gone.â€
Trial counsel indicated he was making a Batson/Wheeler motion and also challenging the composition of the
jury venire as not representative of a fair cross-section of the community. (See gen.,
Taylor v. Louisiana (1975) 419
U.S. 522, 528 [“the selection of a petit jury from a representative cross
section of the community is an essential component of the Sixth Amendment right
to a jury trialâ€].)
The trial
court agreed that the prosecution had exercised peremptory challenges against
two prospective jurors who “appeared to be of Hispanic background.†However, the trial court did not “believe a
primary foundational showing was made that the use of the peremptories was in a
constitutionally invalid way.†It ruled,
“Therefore, I’m going to deny the [Batson/Wheeler]
not required “to state their reasons for the exercise of the challenges†but
invited the prosecutor to “make a record nevertheless.â€
The
prosecutor gave three reasons for exercising a peremptory challenge as to
Perez. The prosecutor first referred to
Perez’s age and work history: “He was a
younger juror. He had almost no life
experience. He is a custodian who’s only
worked at that job for five months. He
came from Sobrato High School, and he made it sound like he started working as
a custodian right after that; but then he went on to explain after further
questioning that actually he finished up with high school two years earlier and
really hasn’t been doing anything except living at home in the meantime
presumably looking for a job. I think he
said he was looking for a job and apparently found one as a custodian. So to me a younger person like that living at
home with his parents who’s only . . . had one job after high school, which I
don’t know if he finished, does not have much life experience to sit on a
jury.â€
The
prosecutor’s next reason for exercising a peremptory challenge as to Perez
concerned his attire: “Another thing I
noticed was his attire. This juror was
wearing long shorts. Hanging out of the
pocket of one of the shorts pockets was a red San Francisco 49ers lanyard,
which is the type of lanyard you see being handed out in San Jose by the bail
bonds people as a free gift. That’s what
I associated with that. He had long
white tube socks on pulled up to his knees and Nike Cortez sneakers on, which I
know to be attire of somebody who is a gang member or gang associate or gang
affiliate or at least is dressing in a similar way to that. And I should point out that the red color on
the lanyard immediately alerted me to the fact that along with the Nike Cortez
sneakers this man who did appear to be Hispanic and had a Hispanic sur name [
The
prosecutor’s third reason for exercising a peremptory challenge as to Perez
concerned his manner of responding to the trial court’s questions: “His – one of the biggest problems I had with
him – I don’t know if the Court caught this or counsel caught this – was that
this juror never answered out loud unless he was directly asked a
question. As to all the group questions
he kept his mouth shut. Sometimes he
would nod or shake his head. Everyone
else at the Court’s urging answered out loud.
This gentleman did not. In fact,
I wrote down that he didn’t answer out loud when the Court asked that general
question of do you agree to volunteer and so that attorneys can follow up will
you volunteer this information, and he didn’t answer. Then when asked is there any reason you
cannot be fair as a group question he had no response. The man didn’t even shake his head or nod his
head. No response whatsoever, which I
took to be disturbing especially with the need for people to be
forthright. He was the one person when I
asked the question of all 17 jurors if they would hold me to the standard of
beyond a reasonable doubt, no [more] no less, he was the one person who
hesitated before acknowledging that he would do that. That caused me concern.â€
The
prosecutor also gave three reasons why he exercised a peremptory challenge as
to Espinoza. The first reason concerned
his appearance: “He was an older
gentleman. He was also Hispanic with a
Hispanic sur name [sic]. What I noticed about his appearance was that
he had an earring in his left ear. It
was a stud earring; that cause[d] me concern because it seemed to be sort of an
unconventional look for someone of his age.
He had a tattoo in the webbing between his thumb and forefinger in his
left hand. It was faded dark-blue ink,
and it appeared to be either homemade or something that you would get in
prison. It obviously wasn’t discussed,
and I didn’t ask him about it; but he had a tattoo in the webbing of his
finger, and to me that’s something like a prison tattoo or a gang tattoo. I am not [naïve]. I know that lots of people have tattoos. But this did not look like it was
professionally done, and the location of it is similar to gang tattoos I’ve
seen in my work as a prosecutor.â€
The
prosecutor’s second reason for exercising a peremptory challenge as to Espinoza
concerned his nephew’s murder conviction:
“The biggest problem with him was that he has [a] relative, a nephew,
who has been convicted of murder out of this county and is in Corcoran State
Prison for it. Apparently it’s on appeal
because he said he’s still going to court for it, but if the nephew is in
prison obviously there was a conviction.â€
The
prosecutor’s third reason for exercising a peremptory challenge as to Espinoza
involved his reaction to something another prospective juror said during voir
dire: “When – he did one other thing
that bothered me. Juror Number 18 who
the court excused later; she was the female writer who had arthritis
problems. She made some comment that she
was attempted to be carjacked, and the comment was in fact the defendant looked
like one of the guys or, you know, he appeared similar appearance to the people
who did this to her. And it didn’t come
out very artfully. But the one visible
reaction I saw of the panel was that [Espinoza], . . . he just shook his
head. He put his head down and shook his
head; and I took that to mean a sign of disapproval, that he didn’t like her
response, he didn’t like her generalizing cross-racially about another
race. And I just couldn’t see the two of
them working together. It caused me some
concern and I wrote it down.â€
The
prosecutor pointed out that he had not
exercised a peremptory challenge to a prospective juror with the last name
Velasco, who was “a young Hispanic man.â€
He called Velasco “a fine juror†who had “some at least life experienceâ€
and who had been “forthcoming with his answers.†The prosecutor noted that this prospective
juror had been challenged by the defense, and that the defense had also excused
a female Hispanic prospective juror who the prosecutor intended to leave on the
panel. The prosecutor also pointed out
that the panel, at that time, still included two Hispanic prospective jurors.
The trial
court asked trial counsel if he wanted to respond. Trial counsel responded to only one of the
prosecutor’s statements, calling it “preposterous†that Perez would be
“classified as a gangster because he wears a Bad Boys key chain.†However, trial counsel stated, “I respect the
District Attorney for what reasons he has for doing what he did.â€
Trial
counsel then referred to his complaint about the jury venire, arguing “we do
not have a proportionate ratio of people.â€
The prosecutor responded, arguing that there was no “legal basis†for
that challenge. The trial court stated,
“The objection is noted. The objection
is overruled.â€
Jury
selection then continued, and the seated jury ultimately contained four female
jurors with Hispanic surnames.
name="_ftnref2" title="">[2]
B. Analysis
“Both the
federal and state Constitutions prohibit any advocate’s use of peremptory
challenges to exclude prospective jurors based on race. [Citations.]â€
(People v. Lenix (2008)
44 Cal.4th 602, 612 (Lenix), citing
When the
defense raises a challenge to the prosecutor’s conduct, “[t]he
established. First, the trial court must
determine 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.] The three-step procedure also applies to
(Lenix, supra, 44 Cal.4th at pp. 612-613.)
1. Prima Facie Showing –
Mootness
Defendant
contends that we should skip the first step of the Batson inquiry because it is moot.
According to defendant, “the prosecutor gave reasons for the two
peremptory challenges, and the trial court ruled on the ultimate question posed
by the objection. Therefore, the
preliminary question of whether there was a prima facie case is moot.â€
We disagree
that the prima facie showing issue is moot in this case. “[A] trial court’s request that the
prosecutor provide reasons for his or her exercise of a peremptory challenge is
not an implicit finding the defendant has established a prima facie case, and
does not moot the issue, in every instance.â€
(People v. Taylor (2010) 48
Cal.4th 574, 612 (Taylor).)
The issue
of whether the defendant made a prima facie showing is moot where the prosecutor provides reasons for the peremptory
challenges and the trial court “has ruled on the ultimate question of
intentional discrimination.†(
352, 359 (Hernandez); see also
560-561; People v. Mills (2010) 48
Cal.4th 158, 174 [issue was moot where trial court ruled that defendant failed
to make a prima facie showing of group bias but “also passed judgment on the
prosecutor’s actual reasons for the peremptory challengesâ€].)
“But when,
as here, the trial court states that it does not believe a prima facie case has
been made, and then invites the prosecution to justify its challenges for purposes
of completing the record on appeal, the question whether a prima facie case has
been made is not mooted, nor is a
finding of a prima facie showing implied.
[Citation.]†(
746, emphasis added.) Our Supreme Court
has “encouraged trial courts to ask prosecutors to give explanations for
contested peremptory challenges, even in the absence of a prima facie showingâ€
but has “emphasize[d] that if a court ultimately concludes that a prima facie
showing has not been made, the request for and provision of explanations does
not convert a first-stage Wheeler/Batson
case into a third-stage case.†(
1020 (Howard).)
In this
case, the trial court ruled that defendant failed to make a prima facie showing
that the prosecutor used his peremptory challenges “in a constitutionally
invalid way.†The trial court then
invited the prosecutor to “make a record,â€
but it did not evaluate the prosecutor’s stated reasons for the
peremptory challenges and never “ruled on the ultimate question of intentional
discrimination.†(Hernandez, supra, 500 U.S. at p. 359; see Taylor, supra, 48 Cal.4th at p. 612 [prima facie showing issue was
not moot where trial court impliedly found no prima facie showing and “denied
the Wheeler motion without commentâ€
after the prosecutor stated reasons for the challenges].) Thus, the issue of whether defendant made a
prima facie showing that the prosecutor exercised peremptory challenges based
on race is not moot.
2. Prima Facie Showing –
Analysis
In
reviewing the trial court’s determination that defendant failed to make the
requisite prima facie showing for a Batson/Wheeler
motion, we apply a deferential
standard of review, “considering only whether substantial evidence supports
[the trial court’s] conclusions. [Citation.]â€
(People v. Bonilla (2007) 41
Cal.4th 313, 341 (Bonilla).)
“[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.’
[Citations.] The defendant
‘should make as complete a record of the circumstances as is feasible.’ [Citation.]â€
(Taylor, supra, 48 Cal.4th at
p. 614.) In Taylor, the court reviewed “the type of evidence that may be
particularly useful regarding this inquiry.â€
(Id. at p. 615.) “[I]t is relevant whether the record shows
that the prosecutor ‘ “ ‘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.’ †’
[Citation.] Also significant is
whether the prosecutor failed to engage the prospective jurors ‘ “ ‘in more
than desultory voir dire, or indeed to ask them any questions at all.’ †’
[Citation.] Although the defendant need
not be a member of the excluded group in order to claim discriminatory excusals
under Wheeler, it is relevant ‘ “ ‘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.’ †’
[Citation.]†(Ibid.)
“When, as
here, ‘a trial court denied a [Batson/Wheeler]
motion because it finds no prima facie case of group bias was established, the
reviewing court considers the entire record of voir dire. [Citation.]
“If the record ‘suggests grounds upon which the prosecutor might
reasonably have challenged’ the jurors in question, we affirm.†’ [Citations.]â€
(People v. Panah (2005) 35
Cal.4th 395, 439 (Panah).)
After the
prosecutor excused prospective jurors Perez and Espinoza, three prospective
jurors with Hispanic surnames remained on the panel; two were still on the
panel later, when the Batson/Wheeler motion
was discussed. Further, a significant
number of prospective jurors with Hispanic surnames still remained in the jury
pool, and the final jury included four jurors with Hispanic surnames. Thus, the prosecutor did not strike “ ‘ “
‘most or all of the members of the identified group from the
venire.’ †’ †(
People v. Blacksher (2011) 52 Cal.4th
769, 801 [no prima facie showing where, at the time of the defendant’s
two African-American jurors on the panel and the final jury included
six African-American jurors].)
The
prosecutor also had not “ ‘ “ ‘used a disproportionate number of his
peremptories against the group.’ †’ †(Taylor,
supra, 48 Cal.4th at p. 615.) At the time defendant raised the
only exercised three of his 20 peremptory challenges. As defendant acknowledges, the prosecutor did
not continue to exercise peremptory challenges to Hispanic-surnamed prospective
jurors at the same two-out-of-three rate:
he ultimately used eight of his 16 peremptory challenges against
prospective jurors with Hispanic surnames, while the defense used eight of its
20 peremptory challenges against prospective jurors with Hispanic
surnames.
Finally,
the prosecutor asked both Perez and Espinoza questions about the issues he was
concerned about – that is, he engaged them “ ‘ “ ‘in more than desultory
voir dire.’ †’ †(
615.) The prosecutor asked a series of
questions about Perez’s work, school, and family, then challenged Perez
primarily because of his lack of “life experience.†Although the prosecutor asked Espinoza only
one question, it did relate to one of the issues he was concerned about: the fact that one of Espinoza’s relatives was
serving a prison term.
In
addition, the record here “ ‘ “ ‘suggests grounds upon which the prosecutor
might reasonably have challenged’ the jurors in question.†’ †(Panah,
supra, 35 Cal.4th at p. 439.) In
reviewing the record, we note that defendant did not challenge the prosecutor’s
physical description of Espinoza or his description of Espinoza’s reaction to
the other prospective juror’s statements on voir dire. Defendant also apparently concurred in the
prosecutor’s description of Perez’s clothing and demeanor; he disputed only the
significance of Perez’s key chain. We
also note that the trial court did not contradict the prosecutor’s descriptions
of these prospective jurors. The fact
that “neither the trial court nor defense counsel below contradicted the
prosecutor’s account of any of the challenged jurors’ demeanor or manner of
responding to his questions[] suggest[s] the prosecutor’s description was
accurate.†(People v. Adanandus
(2007) 157 Cal.App.4th 496, 510.)
Perez was a
younger juror with limited life experience, which “is a race-neutral
explanation†for a peremptory challenge.
(People v. Perez (1994) 29
Cal.App.4th 1313, 1328.) The prosecutor
could also validly challenge Perez because much of his attire appeared to be
similar to what a gang member would wear.
(See Wheeler, supra, 22 Cal.3d
at p. 275 [prosecutor may “fear bias†if prospective juror’s “clothes or hair
length suggest an unconventional life-styleâ€].)
Finally, Perez’s failure to respond to group questions was a
race-neutral reason. (See
[“An advocate may legitimately be concerned about a prospective juror who will
not answer questions.â€]; People v. Ward
(2005) 36 Cal.4th 186, 202 (Ward)
[prospective juror’s “body language†and demeanor can support a peremptory
challenge].)
As for
Espinoza, a family member’s involvement in the criminal justice system is a
race-neutral explanation, even if the prospective juror avers that he or she
can put that experience aside. (
554-555.) Espinoza’s tattoos and jewelry
were also legitimate grounds for his challenge.
(See Ward, supra, 36 Cal.4th
at p. 202; Wheeler, supra, 22 Cal.3d
at p. 275.) Likewise, the prosecutor
could validly challenge Espinoza after he shook his head disapprovingly during
another prospective juror’s voir dire.
(See Lenix, supra, 44 Cal.4th
at p. 613 [a prospective juror may be excused based upon facial expressions or
gestures]; Ward, supra, 36 Cal.4th at
p. 203 [a prospective juror may be excused base on the fact that he or she
“would not fit in†with the other jurors].)
In sum, on
this record, substantial evidence supports the trial court’s determination that
defendant failed to make the requisite prima facie showing for a
“defendant did not meet his burden of raising an inference of
discrimination.†(People v. Bell (2007) 40 Cal.4th 582, 600; see Bonilla, supra, 41 Cal.4th at p. 341.)
Disposition
The
judgment is affirmed.
___________________________________________
Bamattre-Manoukian, J.
WE CONCUR:
________________________________
ELIA, ACTING P.J.
________________________________
Márquez,
J.
name="_ftn1" title=""> [1]
All further statutory references are to the Penal Code unless stated otherwise.
name="_ftn2" title=""> [2]
Pursuant to the Attorney General’s request, we ordered the record on appeal
augmented to include the unredacted list of juror names. The list was filed under seal.
