P. v.
Filed 9/18/12 P. v. Jackson CA1/1
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opinion has not been certified for publication or ordered published for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
ONE
THE PEOPLE,
Plaintiff and Respondent,
v.
TYRONE JACKSON et al.,
Defendants and Appellants.
A130009
(Alameda County Super. Ct.
No. 159972)
Defendants
Keith Millet and Tyrone Jackson, who are African-American, were charged with
who is white. During voir dire of the
jury panel, the prosecutor exercised peremptory challenges to excuse two
prospective jurors who were African-Americans.
On appeal from their conviction following the jury trial, Millet and
Jackson claim the prosecutor violated their state and federal
and trial by jury as articulated in Batson v. Kentucky (1986) 476 U.S. 79 (Batson),
and People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler).
They contend the prosecutor improperly used a peremptory challenge
against one of the two African-American prospective jurors. We conclude that the record supports the trial
court’s finding the prospective juror was not excused for a discriminatory
purpose, and affirm the judgment.
Background
An
information filed May 20, 2009 charged both Millet and Jackson with three
felony violations allegedly committed against the female victim on or around
October 10, 2008, kidnapping to commit rape
or robbery (Pen. Code, § 209, subd. (b)(1)),
(§ 261, subd. (a)(2)), and robbery (§ 211). Both defendants were further charged with
kidnapping enhancement allegations under section 667.61, subdivisions (d)(2)
and (e)(1). Additional enhancement
allegations, for inflicting great bodily injury on the victim during the rape,
were stated against Millet alone.
(§§ 12022.7, subd. (a), 12022.8; see § 667.61, subd. (d)(6).)
During
jury selection, in July 2010, the prosecutor used peremptory challenges to
excuse three prospective jurors. The
first was A.J., an African-American woman, and the third A.T., an
African-American man.
Wheeler, supra, 22 Cal.3d 258, to strike the jury panel, noting that both defendants were
African-American.
name="_ftnref2" title="">[2] The trial court, noting there were no
African-American jurors seated in the jury box and only one African-American
prospective juror seated in the remaining panel, found there was a prima facie
showing of systematic exclusion based on race, and invited the prosecutor to
state his reasons for using peremptory challenges as to A.J. and A.T. The prosecutor stated several reasons for
these peremptory challenges. The court
found the prosecutor’s stated reasons to be credible and race neutral, and denied
the Wheeler motion.
At
the conclusion of the trial in August 2010, the jury found both defendants
guilty of forcible rape and robbery, and found true the kidnapping enhancement
allegations. Its verdicts also found
Jackson guilty of kidnapping for the purpose of rape, and found Millet guilty
of kidnapping for the purposes of robbery and of inflicting great bodily injury
during the rape. In October 2010, the
trial court sentenced Millet to imprisonment for 27 years to life, and
sentenced Jackson to imprisonment for 30 years to life. Defendants appealed. (See § 1237, subd. (a).)
Discussion
A prosecutor’s
use of a peremptory challenge to strike a prospective juror on the basis of
group bias—that is, bias against “members of an identifiable group
distinguished on racial, religious, ethnic, or similar groundsâ€â€”violates the
right of a criminal defendant to trial by a jury drawn from a representative
cross-section of the community under article I, section 16 of the California Constitution,
and also violates the defendant’s right to equal protection
under the Fourteenth Amendment to the United States Constitution. (People v. Hamilton (2009) 45
Cal.4th 863, 898 (Hamilton); see also People v. Avila (2006) 38 Cal.4th
491, 541 (Avila).)
In Johnson v. California (2005) 545 U.S. 162
(Johnson), the United States Supreme Court
“reaffirmed that Batson states the procedure and standard to be employed
by trial courts†when a defendant opposes the prosecutor’s use of peremptory
challenges on the basis of group bias. (People
v. Cornwell (2005) 37 Cal.4th 50, 66–67,
disapproved on another ground in People
v. Doolin (2009) 45 Cal.4th 390, 421 & fn. 22.) 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
facie case, the burden then shifts to the State to explain adequately the
actual racial exclusion by offering permissible race-neutral justifications for
the strikes. Third, if the state tenders
a race-neutral explanation, the trial court must then decide whether the
defendant has proved purposeful racial discrimination. (Johnson, supra, at
p. 168.)
In
this instance, it is unnecessary to consider the first step of the Batson/Wheeler
inquiry because the trial court—by asking the prosecutor to explain the reasons
for his peremptory challenge excusing prospective juror A.J. from the
panel—implicitly found defendants made a prima facie case of a possibility of
discriminatory exclusion.
(1993) 5 Cal.4th 405, 428.)
As
for the second step of the inquiry, we note that a prosecutor, when asked to state his or her
reasons for exercising a peremptory challenge, must provide a clear and
reasonably specific explanation of legitimate reasons for exercising the
challenges. The justification need not
support a challenge for cause, and even a “trivial†reason, if genuine and
neutral, is sufficient. (People v. Lenix (2008) 44 Cal.4th 602, 613 (Lenix).) Even a reason that may make no sense is
nonetheless “sincere and legitimate†as long as it does not deny equal
protection. (People v. Guerra
(2006) 37 Cal.4th 1067, 1101 (Guerra),
disapproved on another ground in People
v. Rundle (2008) 43 Cal.4th 76, 151.)
Here,
the prosecutor first expressed a concern over A.J.’s familiarity with the
primary crime scene in Oakland. “She
said she was from West Oakland. In fact,
she talked about the fact that she goes by the crime scene every single day;
that she knows it well; that it would be impossible for her not to continue to
go by it every single day.†Second, the
prosecutor expressed a concern about A.J.’s potential distrust of the criminal
justice system. Specifically, she had
been employed at a transitional housing facility for parolees, and while there
had been “the victim of a crime and didn’t report that.†Such failure to report “seemed to indicate
her level of trust of the justice system or at least her willingness to speak
up.†Third, and also indicating a
distrust of the criminal justice system, the prosecutor said A.J. had “agreed
that [a friend] committed . . . manslaughter and still felt that the justice
system had treated [him] unfairly.â€
We
observe none of these reasons are inherently discriminatory and may thus be
deemed race neutral for purposes of the second step of the Batson/Wheeler analysis.
(See People v. Adanandus (2007)
157 Cal.App.4th 496, 505, fn. 3 (Adanandus).)
This
leads us to the final step of the Batson/Wheeler
analysis, in which we
review the trial court’s finding of no purposeful discrimination. At this stage, the proper focus is on the
race-neutral reasons given for the peremptory challenge, not on the
reasons. (Adanandus, supra, 157 Cal.App.4th at pp. 505–506.) The critical question in determining whether
a defendant has proved purposeful discrimination is the persuasiveness of the
prosecutor’s justification for his or her peremptory strike. (Hamilton,
supra, 45 Cal.4th at p. 900.) Thus,
at the third stage of the Wheeler/Batson inquiry, the issue is whether
the court found the prosecutor’s race-neutral explanations to be credible.
Three
significant factors for measuring the prosecutor’s credibility are the
prosecutor’s demeanor, how reasonable, or improbable, his or her explanations
are, and the extent to which the stated reasons have some basis in accepted
trial strategy. (Lenix, supra, 44 Cal.4th at p. 613.) In assessing credibility, the court may draw
on its own contemporaneous observations of the voir dire, and may also rely on
his or her own experiences as a lawyer and bench officer in the community, as
well as the common practices of the prosecutor’s and his or her office. (Ibid.)
In
this case, the trial court took the matter under submission after the
prosecutor stated his reasons for the peremptory challenge, to review the voir
dire transcripts and the relevant case law.
A.J.’s voir dire transcripts, beginning with the court’s initial voir
dire, indicate, in relevant part, that she previously worked for about one year
as a monitor at a transitional housing facility for parolees. About two years before being called as a
prospective juror, A.J. had visited a “very close†friend incarcerated in the
county’s Santa Rita Jail, whom she said was currently still awaiting trial on a
charge of manslaughter. When asked if she
felt her friend had been treated fairly or unfairly by the police, the district
attorney’s office, and the court, she said she thought the process had “been
fair.†Later, when the prosecutor
questioned her, she said her friend had since been transferred from the Santa
Rita Jail to another facility. The
prosecutor asked again if she felt he was “being treated fairly by the system,â€
and this time she responded by saying, “I really don’t know,†elaborating that
“when he was arrested, they were saying that he had a gun on him, but he . . .
said that he didn’t[; so] everyone is confused[,] we don’t know.†The prosecutor then noted she mentioned being
familiar with the area around the Oakland intersection of 45th Street
and Martin Luther King Jr. Way, and asked her “how familiar†she was with the
location. She said it was her “mailing
address.†She answered in the
affirmative when asked if it was “a place [she] would drive by often,†and one
with which she was “very familiar.†When
asked to describe her familiarity with the area, she said she “kn[ew] it well,â€
went “there often,†and described it as a “busy area.†When asked if it was a place she “would have
difficulty avoiding†during the trial, A.J. said, “Well, I have to go there to
pick up my mail[.]†She went on to say
she believed she could separate any testimony about this area from her own
experience, and would not attempt any investigation of the area on her
own. When the prosecutor asked about
A.J.’s experience at the transitional housing facility, she said she “was
always around [parolees, s]o, yeah,†she had developed relationships with
them. When asked if she had had
“problems†with any of the parolees, A.J. said she had, with “one individual.†The prosecutor then asked if that had led to
“filing any kind of a report or anything like that,†and she replied,
“No.†She answered affirmatively when he
asked if she had “handle[d]†the problem herself.
After
reviewing the voir dire transcript summarized above, the trial court summarized
on the record those portions relating to A.J.’s “very close friend†awaiting
trial for manslaughter, and those relating to her experience as a monitor of
parolees. The court then stated,
correctly, that under the law the justification for a peremptory challenge need
not equal that necessary to support a challenge for cause, and it might even be
“a trivial reason†so long as it was “[g]enuine and neutral.†(Lenix, supra, 44 Cal.4th at p. 613.) Citing several
cases, the court also said, correctly, that nondiscriminatory justifications
for use of a peremptory challenge include:
a juror who has a “close relative†who “has had a negative experience
with the criminal justice system†(see, e.g., Avila, supra, 38 Cal.4th at pp. 554–555); a juror who has had “life
experiences that would make [him or her] overly sympathetic to or biased to a
defendant’s position†(see, e.g., People
v. Salcido (2008) 44 Cal.4th 93, 140); and a juror who has been “employed
in a job or engaged in activities that reflect an orientation toward rehabilitation
and sympathy towards defendants†(see, e.g., People v. Neuman (2009) 176 Cal.App.4th 571, 586). The court then stated that the case law was
“fairly clear†that when “some reasons given by the [prosecutor] are not well
supported by the record does not mean a challenge . . . was motivated by race,â€
as the challenge “could sometimes involve a mixture of strong and weak
reasons.â€
The
trial court then found the prosecutor had “provided neutral explanations for
exercise of the peremptory challenge[] as to [A.J.].†The court did “not believe†the challenge had
been exercised based on “purposeful racial discrimination,†keeping in mind
that its proper focus in making that determination was “subjective genuinenessâ€
of the race-neutral reasons given by the prosecutor, rather than “any objective
reasonableness of [those] reasons.†The
court found the prosecutor’s “race-neutral explanations [were] credible . . .
not only . . . on the basis of [its] contemporaneous observation of voir dire
but, also, on a comparative analysis involving the [other] panelists†who had
so far been excused or allowed to remain by both parties. On these bases, the court was “satisfied that
the specifics offered by the [p]rosecutor [were] consistent with the answers
[it had so far] heard and the overall behavior of the panelists.â€
Support in the Record
Defendants
contend the trial court erred when it determined the prosecutor’s specified
reasons were race neutral and credible.
They first compare, at some length, the specific reasons articulated by
the prosecutor with A.J.’s actual voir dire testimony. In defendants’ view, the prosecutor misstated
or mischaracterized the prospective juror’s actual testimony to such an extent
that we must regard his reasons as impermissibly pretextual. They claim the offer of three such pretextual
reasons is sufficient to establish a Batson/Wheeler
violation.
The
existence or nonexistence of purposeful racial discrimination is a question of
fact. We review the trial court’s determination
of that question under the substantial evidence standard, according deference
to its ruling when the court has made a sincere and reasoned effort to evaluate
the stated reasons for a challenge to a particular juror. (Hamilton,
supra, 45 Cal.4th at pp. 900–901.)
We exercise due restraint when reviewing that court’s
determination. We presume the prosecutor
exercised peremptory challenges in a constitutional manner, and give great
deference to the court’s ability to distinguish valid reasons from sham. So long as the trial court makes a sincere
and reasoned effort to evaluate the prosecutor’s stated reasons, its
determination is entitled to deference on appeal. (Lenix,
supra, 44 Cal.4th at pp. 613–614.)
We
observe A.J. did not say she went by the identified intersection “every day,â€
as the prosecutor put it, but she did say she went there “often,†“to pick up
[her] mail,†and was “very familiar†with the area. These differences are minimal. A.J. also did not say she had been the
“victim of a crime†that she “didn’t report,†as the prosecutor stated, but she
did say, “No†when asked if she had reported the “problem†she said she had had
with one of the parolees, and she said, “Yes†when asked if she had “handle[d]â€
the matter herself. While A.J.’s
testimony did not indicate whether the “problem†was criminal in nature, it is
reasonable to infer that, as a monitor at the facility, it would have been her
duty to report any significant “problem†with one of the parolees whatever its
nature. Finally, A.J. did not say she
“agreed†that her friend awaiting trial had “committed . . . manslaughter†yet
“still felt the criminal justice system had treated [him] unfairly,†as the
prosecutor told the court. She did, however,
express doubt about whether he had been treated fairly because her friend had
denied having a gun, whereas “they†had said he did. It is reasonable to infer her uncertainty
arose from the regard she had for a “very close friend,†as opposed to the “system.â€
After
the prosecutor stated his reasons for the peremptory challenge of A.J.,
Jackson’s trial counsel argued that her statements had not, in fact, been
exactly as the prosecutor had characterized them. Moreover, as noted above, the trial court reviewed
A.J.’s actual voir dire testimony immediately afterwards. The court was thus fully aware of the
discrepancies between A.J.’s actual testimony and the prosecutor’s
characterization of that testimony at the time it made its determination that
the prosecutor’s stated reasons were subjectively genuine. The court also expressly based its
determination on its own observations.
The best evidence of whether a race-neutral reason is credible is often
the demeanor of the attorney who exercises the challenge, and an evaluation of
that attorney’s state of mind, based on demeanor and credibility, lies
particularly within the trial court’s province.
(People v. Stevens (2007) 41 Cal.4th 182, 198.) Under the deferential standard of
review applicable here, we are not persuaded that the prosecutor’s characterization
of A.J.’s voir dire testimony deviates so greatly from her actual testimony as
to require that we reject the trial court’s finding—made with full awareness of
their distinctions—that the reasons were nonetheless not pretextual, but race neutral
and credible. We conclude the stated
reasons are adequately supported by the record.
With Juror No. 8
Defendants
claim that the prosecutor’s first stated reason—concerning A.J.’s familiarity
with the primary area near the primary crime scene—was also pretextual because
the prosecutor posed similar questions to Juror No. 8, but did not challenge
him. Specifically, the prosecutor asked
Juror No. 8 if he had gone to a particular bookstore in Oakland “[a] lot,†and
the juror replied, “I wouldn’t say ‘a lot’ [but] once in a while.†Defendants assert this was the location where
Jackson had said he had picked Millet up on the night of the crimes—hence Juror
No. 8 was, like prospective juror A.J., familiar with a location about which
evidence would be produced. They reason
that, when a prosecutor challenges a minority juror for a reason, but accepts a
nonminority juror to whom that reason applies, pretext is established.
Whereas
the trial court based its determination, in part, on its own comparison of the
voir dire of A.J. with that of other panelists, we note its determination
occurred before Juror No. 8 was seated and questioned. We note further, when
a comparative juror analysis is undertaken for the first time on appeal, the
prosecutor is never given the opportunity to explain the differences he
perceived in jurors who seemingly gave similar answers. (Lenix,
supra, 44 Cal.4th at p. 623.)
In addition, two prospective jurors “might give a similar answer on a
given point . . . [y]et the risk posed by one [prospective juror] might be
offset by other answers, behavior, attitudes or experiences that make one
[prospective] juror, on balance, more or less desirable[, and t]hese realities,
and the complexity of human nature, make a formulaic
comparison of isolated responses an exceptionally poor medium to overturn [the]
trial court’s factual finding.†(Id. at
p. 624.)
In
this instance, defendants’ claim of similar answers is a strained
comparison. Juror No. 8 did not visit
the location where the crimes primarily occurred, but a location where Jackson
claimed to have picked Millet up earlier in the evening, before the crimes
occurred. In addition, Juror No. 8 did
not visit the location “a lot,†but only “once in a while.†After reviewing the whole of Juror No. 8’s
voir dire testimony in comparison with the whole of A.J.’s, and viewing that
comparative evidence in light of the totality of evidence relevant to
defendants’ claim, we conclude the comparative answers do not demonstrate
purposeful discrimination. (cf.
Trial Court’s Stated Reasons
As we have noted, the trial court, in
making its determination, summarized the relevant case law and in so doing
mentioned three established race-neutral grounds for using a peremptory
strike: when a juror has a “close
relative†who “has had a negative experience with the criminal justice systemâ€;
when a juror has had “life experiences†that would make the juror overly
sympathetic to a defendant; and when a juror has been engaged in activities
that reflect an orientation toward rehabilitation and sympathy towards
defendants. Defendants argue that the
court erred in its determination because none of these established grounds
match the prosecutor’s stated reasons for excusing A.J.
We see no merit to this claim. As we have noted, a stated reason for a
challenge need not fall squarely within one of the race-neutral grounds
established by case law. The reason may
be trivial, or even nonsensical, so long as it is genuine and neutral. (Lenix, supra, 44 Cal.4th at p.
613; Guerra,
supra, 37
Cal.4th at p. 1101.) The fact the trial court
mentioned three of the established grounds—in connection with evaluating not
only the stated reasons for excusing A.J., but also the reasons for excusing
A.T.—does not necessarily mean that the court found each of the reasons given
as to A.J. to fall within one of these established grounds. It appears, on the contrary, the court
mentioned these grounds because they appeared more or less analogous to some of
the prosecutor’s stated reasons as to both A.J. and A.T.
5. Statistical
Analysis
Defendants point out the prosecutor excused both of
the only two African-American prospective jurors who made it into the jury box,
leaving no African-American jurors on the jury; and yet excused only one of 29
nonAfrican-American prospective jurors.
They suggest the court erred in finding that the peremptory challenge of
A.J. was not pretextual, but race neutral and credible, based on these statistics. This argument, however, is more relevant to
whether a defendant has made a prima facie showing satisfying the first step of
the Batson/Wheeler analysis, and is
of lesser importance when evaluating whether the prosecutor’s stated reasons
were pretextual. (People v. Mills (2010) 48 Cal.4th 158, 174, fn. 4.) These statistics based on a small number of
challenged African-American prospective jurors do not in themselves require us
to overturn the trial court’s finding when viewed with the reasons given for
excusal.
“Motivated in Substantial Part†by Discriminatory Intent
As
we have noted, the trial court, in making its determination, commented that the
case law was “fairly clear†that the fact “some reasons given by the
[prosecutor] are not well supported by the record does not mean a challenge . .
. was motivated by race,†as the challenge “could sometimes involve a mixture
of strong and weak reasons.†This
comment, according to defendants, shows the court acknowledged that some of the
prosecutor’s stated reasons lacked sufficient support. They reason this demonstrates that the court
improperly relied only on the stated reasons it believed were supported by
record, and ignored those that were not.
In defendants’ view, the court thus erred by failing to apply the proper
standard under Snyder v. Louisiana (2008)
552 U.S. 472, 485 (Snyder).
In
Snyder the U.S. Supreme Court
reviewed a prosecutor’s stated reasons for using a peremptory challenge to
excuse an African-American prospective juror.
The first was the prospective juror’s demeanor, while the second was a
concern that, because the prospective juror had stated a concern about missing
classes if he served on the jury, he would, in order “ ‘to go home
quickly, come back with guilty of a lesser verdict [than first-degree murder]
so there wouldn’t be a penalty phase.’ â€
(Snyder, supra, 552 U.S. at p.
478.) The court found the second stated
reason to be pretextual and, hence, discriminatory “even under the highly
deferential standard of review†that was applicable. (Id. at
p. 479.) The court further noted it
could not be determined from the record whether the trial court, in allowing
the challenge, relied on the first, permissible reason or the second,
impermissible reason, or both. (
The court held the peremptory strike could not be sustained under
“motivated in substantial part by discriminatory intent,†and the record did
not show the prosecution would have used the peremptory challenge based on the
permissible reason alone. (
We
find this argument unpersuasive in the context of the explanation given in this
case. The comment on which defendants
rely does not establish the trial court found some of the prosecutor’s stated
reasons to be pretextual and, hence, discriminatory, particularly in light of
its express finding, made moments later, that all the prosecutor’s stated reasons were race neutral and
credible. It is much more reasonable to
infer from this comment the court regarded some of the stated reasons to be
“weak,†although still race neutral and credible. When the court summarized portions of A.J.’s
voir dire testimony, it referred only to her statements made in connection with
her “problem†with the parolee, and those she made in connection with her “very
close friend†in jail. We may infer from
this that the court regarded these as having some tendency to show a distrust
of the criminal justice system, whereas the third reason—A.J.’s familiarity
with the crime scene—was “weak†by comparison because it had less basis in
accepted trial strategy. (See
As
discussed above, we have not otherwise found the prosecutor’s stated reasons to
be pretextual and discriminatory. We conclude
the stated reasons were not “motivated in substantial part by discriminatory
intent†so as to fall within the holding in Snyder,
supra, 552 U.S. at page 485. The
central justifications for excusing the juror were permissible.
7
Our
review of the trial court’s stated reasons for its determination, overall,
persuades us that the court understood its role and made a sincere and reasoned
effort to evaluate the stated reasons for the peremptory challenge of A.J, and
its determination is entitled to deference.
(Lenix, supra, 44 Cal.4th at
pp. 613–614.) We conclude the court’s
determination is supported by substantial
evidence.
Disposition
The
judgment is affirmed.
______________________
Marchiano, P.J.
We concur:
______________________
Margulies, J.
______________________
Dondero, J.
Further statutory references are to the Penal Code.
As defendants point out, their motion under Wheeler,
supra, 22 Cal.3d 258, is
deemed to include a challenge under Batson,
supra, 476 U.S. 79, that the
opposed use of a peremptory challenge violated not only their state
constitutional right to a jury trial by a representative cross-section of the
community, but also their federal constitutional rights to trial by jury and
equal protection. (People v. Yeoman (2003) 31 Cal.4th 93, 117–118.)
