P. v. Brooks

Filed 6/26/08 P. v. Brooks CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FOUR

Defendant appeals from his conviction by jury trial of possession of a firearm by a felon (Pen. Code,  12021, subd. (a)),^[1]possession of an assault weapon ( 12280, subd. (b)), and possession of ammunition ( 12316, subd. (b)(1)), alleging that the trial court erred in denying his motion pursuant to Batson v. Kentucky (1986) 476 U.S. 79 and People v. Wheeler (1978) 22 Cal.3d 258. He contends that the prosecutors peremptory challenge of an African-American prospective juror violated his right to equal protection. We conclude that the trial court did not err and affirm.

Background

As defendants sole issue on appeal relates to the selection of his jury, our summary of the underlying offenses will be brief. During a search of defendants residence, San Francisco Police Department officers found an assault weapon (an SKS assault rifle) between the frame of defendants bed and the mattress. Defendant admitted the gun was his and indicated that he had it for protection. The firearm was loaded (one round in the chamber and 29 in the magazine), and two other cartridges were found in the apartment.

Defendant was charged by information with a violation of section 12021, subdivision (a)(1), felon in possession of a firearm (two prior felony convictions were allegeda 1985 conviction of sale or transportation of marijuana (Health & Saf. Code,  11360, subd. (a)) and a February 2002 conviction of transportation of a controlled substance (Health & Saf. Code,  11352, subd. (a)), possession of an assault rifle ( 12280, subd. (b)), and possession of ammunition ( 12316, subd. (b)(1)). He was convicted of all counts and sentenced to two years in state prison.^[2]

Discussion

The sole issue on appeal is whether the trial court erred in its determination that the prosecutors peremptory challenge of an African-American juror was not racially motivated. This contention relates to prospective juror number 1287990 (hereafter Juror Doe). Juror Doe first came to the trial courts attention before she was called into the jury box for questioning. The court recessed for lunch as the prosecutor was asking questions of the prospective jurors regarding any negative experiences they might have had with law enforcement; Juror Doe remained behind to address the court. She indicated that the system had failed her and her adopted son. Her complaint was centered on her attempts to get services for her son, which she felt were frustrated by medical personnel providing substandard care. Her son was apparently removed from her home; she felt this was due to blame being put on her for not following up regarding his medical care. When the court inquired if she could put her feelings and those events aside, Juror Doe responded, This is difficult. With me being under CPS, Ive been attending parenting classes. Ive had to go to anger management classes, theyve had me in a home process and going to Court . . . . [I]tsmy focus, until I come from under this system, itsits in my life, its controlling my life . . . . [] . . . So me being here with another black male, I would love to serve on this jury, I would. [] . . . But emotionally Im just At this point in the proceedings, defense counsel pointed out to Juror Doe that she was the only African-American on the jury panel and encouraged her to sit on the case. To this Juror Doe responded, Its just they have him as an African-American man, and I amI have an African-American son, and I am a part of this system. Hes a part of this system. And so somehow or another itsmy feelings, when I look at him and bringing over my feelings from my situation . . . . []  Let me go home and Ill pray on this. Because Id love to serve on this jury, you know, but you seeI just dont want toI want to be able to separate my emotional needs whats going on with me and going on with him. Let me pray on this. In response to questions by the prosecutor, Juror Doe indicated that she would not be biased on the case, but felt the situation opened up [her] wounds. She indicated she could convict defendant if she were convinced that he possessed an assault weapon, but stated [Y]ouve got to give the evidence why he had this weapon. If he was carrying awas he authorized to be able to carry this weapon. She was then excused for the lunch break. In discussion between court and counsel regarding whether Juror Doe should be excused, the court commented that Juror Doe several times began to weep and brought herself under control while she was speaking to us; the court expressed concern about making her suffer emotional torture by serving on the jury. Defense counsel concurred with the courts analysis of Juror Does emotional state. The prosecutor further noted, I saw somebody barely able to compose herself throughout it. She wept openly, she was very upset. She was trembling, she was crying. The prosecutor opined that it was only after defense counsel implored Juror Doe to remain on the jury due to her race that she seemed to turn around a bit. The prosecutor felt that Juror Doe would be distracted due to her emotional state and that she might make serving on the jury an agenda; he was very concerned about her ability to be fair. After the lunch recess, Juror Doe informed the court that she had decided she would remain and be involved in the justice in this case.

The next day, Juror Doe participated in the actual voir dire process. She indicated she was divorced and was retired from work as a counselor specializing in working with high risk youth. She had a 40-year-old son and a 17-year-old adopted son. When the court asked the group of prospective jurors as a whole if any of them felt that African-Americans were more likely to face criminal charges than other races, Juror Doe was the first to respond affirmatively. She indicated, Again, the racial profiling. We have real social problems . . . . [Y]ou can look in this courtroom and see how my culture is underrepresented. You know why. . . . I work with many community groups. Were losing our youth daily to the point that they feel the need to be armed to protect themselves because they cannot be protected by the police department . . . . There are weapons in the black community . . . . [S]o the children are taking law and order intotheir own hands to protect themselves . . . . Were down to 5 percent . . . African Americans in this city. 5 percent.

Later, when another juror asked if the court could supply the prospective jurors with a written copy of a particular jury instruction that had been referenced, the court indicated that it would be provided, but that the jurors could not take it home with them. Juror Doe interjected and asked why not; the court explained that the jurors might fall into discussing the case with individuals at their homes who might see the instruction. Juror Doe responded, saying she had a hard time understanding the statement. I understand part of it, but . . . . At the courts request, Juror Doe agreed to defer this discussion until the end of voir dire.

With regard to self-defense issues, Juror Doe indicated that she would do whatever it takes to protect her sons. Later, in response to a misdirected question (directed at Juror Doe in error) of whether she slept safe now with a gun, Juror Doe answered yes. Later during questioning by defense counsel regarding the jurors ability to follow the law as given to them by the court, Juror Doe gave a long response which included a belief that if you arm yourself, you dont have to kill anyone (as opposed to wounding anyone). In response to questions about negative experiences with law enforcement, Juror Doe indicated that she was a community organizer, had gone through a period of time where she had occasion to frequently call the police, and that the police finally told her, get a gun, you must defend yourself, we just cannot be there. Defense counsel subsequently asked Juror Doe if she would be out for a vendetta against the prosecution because she was the same race as defendant, or whether she would evaluate the case like everybody else. Juror Doe responded that she would evaluate the case like everybody else.

The prosecutor challenged Juror Doe for cause, indicating You recall yesterday . . . at the noon break, she was sobbing. She was just over my right shoulder, and she said repeatedly, I cannot do this. I cannot do this. She was looking at me . . . . The prosecutor said that he tried to indicate to Juror Doe that she should talk to the bailiff or clerk, and that Juror Doe finally did get the attention of one of them. The prosecutor then referenced the on-the-record discussion with Juror Doe, indicating that she cried all of the way through the discussion, and that her mood and appearance changed after defense counsel implored her to stay on the jury since she was the only African-American prospective juror. The prosecutor also referenced Juror Does inquiry regarding jury instructions and her answers regarding his inquiry about negative experiences with law enforcement. Specifically, the prosecutor indicated that Juror Doe became an advocate this afternoon. She turned to the other jurors and to indoctrinate them told . . . about her vision of the neighborhood and the necessity that exists in the way of having firearms. In all, the prosecutor felt that the People were not going to get a fair juror out of Juror Doe. After the court denied the challenge for cause,^[3]the prosecutor exercised a peremptory challenge as to Juror Doe. Defense counsel objected pursuant to Batson, supra, 476 U.S. 79 and Wheeler, supra, 22 Cal.3d 258.

A prosecutor may not use peremptory challenges to remove prospective jurors solely because they are members of an identifiable racial group. (Batson, supra, 476 U.S. 79 at p. 89; Wheeler, supra, 22 Cal.3d 258 at pp. 265-266, 272.) Peremptory challenges must instead be exercised to eliminate a specific bias relating to the particular case on trial or the parties or witnesses thereto. (Wheeler, supra, at p. 276.) To do otherwise violates a criminal defendants federal constitutional right to equal protection and his or her state constitutional right to be tried by a jury drawn from a representative cross-section of the community. (See Batson, supra, 476 U.S. at p. 89; Wheeler, supra, 22 Cal. 3d at pp. 265-266, 276-277; People v. Griffin (2004) 33 Cal.4th 536, 553; see also U.S. Const., amend. XIV; Cal. Const., art. I,  16.)

Batson articulated a three-step process for evaluating a defendants claim that the prosecutors exercise of peremptory challenges was discriminatory. (Batson, supra, 476 U.S. at p. 96.) First, the defendant must make a prima facie case by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose on the part of the prosecutor. (Johnson v. California (2005) 545 U.S. 162, 168.)^[4] We begin with the presumption that the prosecution exercised the peremptory challenge on a constitutionally permissible basis. (People v. Cleveland (2004) 32 Cal.4th 704, 732.) The defendant bears the burden of producing evidence sufficient to permit the trial court to draw an inference that discrimination has occurred. (Johnson, supra, 545 U.S. 162 at p. 169.)

If the defendant makes a prima facie case of discrimination, the burden of proof shifts to the prosecutor at the second stage to show that the racial exclusion was not predicated on group bias. (Johnson v. California, supra, 545 U.S. at p. 168.) The prosecution must offer a permissible race-neutral basis for exercising a peremptory challenge against that juror. (Johnson v. California, supra, 545 U.S. at p. 168.)

Finally, if a race-neutral explanation is offered, the trial court must determine whether the opponent of the strike has proved purposeful racial discrimination. (Johnson v. California, supra, 545 U.S. at p. 162.) In determining whether the prosecutions justification for peremptory challenge is pretextual, the proper focus of the trial court is on the subjective genuineness of the race-neutral reasons given, not on the objective reasonableness of those reasons. (People v. Reynoso (2003) 31 Cal.4th 903, 924.)

We review the trial courts ruling on the question of purposeful racial discrimination for substantial evidence. (People v. McDermott (2002) 28 Cal.4th 946, 971.) We give deference to the trial courts ability to distinguish bona fide reasons from sham excuses. (People v. Burgener (2003) 29 Cal.4th 833, 864.) The trial courts conclusions are entitled to deference as long as the court makes a sincere and reasoned effort to evaluate the nondiscriminatory justifications offered. (Ibid.)

Despite the trial courts preliminary indication that there are reasons to be le[e]ry of [Juror Doe], and the courts finding that Juror Doe expressed a dissatisfaction with the treatment she . . . received at the hands of the system, under circumstances which one can draw an inference in this trial in particular, the prosecutor conceded that defendant had made out a prima facie case as required under step one of Batson, supra, 476 U.S. 79.^[5] The prosecutor then asked the court to consider all the reasons stated for his challenge of Juror Doe for cause as reasons for his peremptory challenge of her, in addition to what he referenced as her being a conscientious destroyer,^[6]summarizing Juror Does exchange with the court regarding jury instructions and concluding that Juror Doe appeared not to trust any organization of government, including the bench officer. After hearing argument from defense counsel, the court denied the Batson/Wheeler motion, stating that it was accepting the prosecutors declarations for the reasons that he exercises the challenge as he did.

Even a brief reference to the prosecutors reasons and the trial courts own observations of a challenged juror can constitute a sincere and reasoned evaluation of the credibility of the prosecutors justifications. (People v. Jackson (1996) 13 Cal.4th 1164, 1197-1198; People v. Montiel (1993) 5 Cal.4th 877, 909.) Deference is shown to the trial courts evaluation of the reasons given in support of peremptory challenges. The trial court must consider all relevant circumstances including those that are subtle, subjective, and incapable of being transcribed. (People v. Jackson, supra, 13 Cal.4that p. 1197.) When the prosecutors reasons are inherently plausible and supported by the record, then the trial court need not question the prosecutor or make detailed findings. (People v. McDermott, supra, 28 Cal.4th 946 at p. 980, People v. Silva (2001) 25 Cal.4th 345, 386.)^[7] In the present case, the trial court accepted the reasons for the exercise of the peremptory challenge of Juror Doe as stated by the prosecutor. That finding was supported by substantial evidence in the record. Given Juror Does initial emotional state, her reaction to questioning, her apparent distrust of the system, and her attitudes about the need for citizens to arm themselves, the prosecutor would have been derelict in his duty if he left her on the jury.^[8] Juror Does responses regarding the possession of firearms was especially important in the present case, which involved charges arising from defendants possession of a firearm in his home. Indeed, defendants proffered defense was that he needed the gun for protection. We conclude that the trial courts findings that the prosecutors reasons were not pretextual were supported by substantial evidence. The trial court did not err in denying defendants Batson-Wheeler motion.

Disposition

The judgment is affirmed.

_________________________

Sepulveda, J.

We concur:

_________________________

Reardon, Acting P.J.

_________________________

Rivera, J.

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^[1]All further section references are to the Penal Code unless otherwise indicated.

^[2]The sentence consisted of the mitigated term of 16 months on the possession of an assault weapon charge and a concurrent term of eight months on the possession of ammunition charge. The sentence on the felon in possession of a firearm charge was stayed pursuant to section 654.

^[3]The court commented on its own apparent difficulty with this ruling, indicating, This is typical for me. I have to struggle with my personal emotional sense of dismay. I am doing my best, as the jurors often say, they will do, to try to put aside my emotions.

^[4]In Johnson v. California, supra, 545 U.S. 162, the United States Supreme Court reaffirmed that Batson, supra, 476 U.S. 79 states the procedure and standard to be used by trial courts when motions challenging peremptory strikes are made. (See People v. Avila (2006) 38 Cal.4th 491, 541.)

^[5]The prosecutor indicated that he was stipulating to this because he had peremptorily excused the sole African-American prospective juror and felt that fact was sufficient to make out a prima facie case.

^[6]As both sides suggest on appeal, it is possible that the prosecutor actually referred to Juror Doe as a consensus destroyer, as he had previously done so.

^[7]The trial court did not make specific and detailed findings with regard to the various reasons proffered by the prosecutor. As far those reasons referred to observations that could not be shown from a cold transcript, the Supreme Court has recently noted that  is why . . . the [trial] judges evaluation must be given much deference. [Citation.] [D]eference is especially appropriate where a trial judge has made a finding that an attorney credibly relied on demeanor in exercising a strike. (Snyder v. Louisiana (2008) ___U.S.___ (128 S.Ct. 1203, 1209). Defendant argues in his reply brief that due to the lack of findings by the trial court, we should not give deference to the prosecutors claims that Juror Doe looked at him every time she mentioned the system, and that she kind of hollered at the judge regarding the jury instruction issue. Here, unlike the Snyder case, the trial court did not merely allow the challenge without explanation, but rather indicated that it accepted the prosecutions declarations as the reasons he challenged Juror Doe. Further, even if we were to ignore these proffered explanations by the prosecutor, other stated reasons for the exercise of the peremptory challenge supply substantial evidence supporting the trial courts ruling. Additionally, the courts preliminary statements regarding the prosecution having cause to be leery of Juror Doe and that Juror Doe had expressed dissatisfaction with the treatment she had received at the hands of the system, support our deference to the trial courts ruling.

^[8]Of course the fact that the stated reasons were insufficient to support a challenge for cause does not render them inappropriate or inadequate justifications for exercising a peremptory challenge. (People v. Allen (2004) 115 Cal.App.4th 542, 547, citing People v. Arias (1996) 13 Cal.4th 92, 136.) To hold otherwise would render peremptory challenges meaningless. Additionally, we hopefully have not reached the point where either side is required to retain a prospective juror whom they have valid race-neutral reasons for excusing (though not sufficient to support a challenge for cause) simply because that juror is of a certain race; such a result would turn the Batson/Wheeler doctrine on its head by truly making jury selection race-based.