Filed 8/28/18 P. v. Hall CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

Defendant Doreman Hall was convicted by jury trial of possession of a firearm by a felon (Pen. Code, § 29800, subd. (a)(1))[1] and possession of concentrated cannabis (Health & Saf. Code, § 11357, subd. (a)). The jury also found true allegations that defendant had served a prior prison term (§ 667.5, subd. (b)), and as to count 2, that defendant had previously been convicted of violating section 288, subdivision (c)(1). Defendant was sentenced to a prison term.[2]

On appeal, defendant contends that the trial court erred in denying his Wheeler/Batson[3] motion because the prosecutor improperly exercised a peremptory challenge based on gender bias. We conclude that defendant failed to preserve this issue for appellate review because his challenge to the prosecutor’s action did not articulate gender as its basis but was based on race. Consequently, we affirm the judgment.

I. Statement of the Facts

Parole officers searched defendant’s apartment on September 4, 2014. The officers found a set of keys in defendant’s bedroom, and defendant stated that the keys belonged to him. The officers used one of the keys to open a safe, which was in the living room. Inside the safe, the officers found a handgun and a small vial that contained concentrated cannabis. Defendant admitted that he had owned the gun for a year. There were three unfired casings and two fired casings inside the gun. The parties stipulated that defendant had previously been convicted of a felony.

II. Discussion

A. Background

Prospective Juror No. 53 was one of the first 18 people called to the jury box. During voir dire, when asked what she did for a living, Prospective Juror No. 53 stated: “I run my own entertainment company. And I’m in the healing arts. I’m a dance fitness instructor, I’m a Montessori teacher, I do a lot of things.” When asked to describe her involvement in the healing arts, she explained: “I do energy healing, help people feel better, if they have any health issues or any pain, I know how to remove it ‘cause I meditate a lot, done a lot of yoga, and just know how to clear my mind and focus in on an issue.” She provided a further description of her energy healing: “I had this in me since I was little, been very spiritual, and it just was something that came naturally, and I was just drawn to it.”

The prosecutor exercised a peremptory challenge to Prospective Juror No. 53. Defendant, who was representing himself at trial, contested the peremptory challenge under Wheeler/Batson. Defendant argued: “Under the Wheeler-Batson majority group of my own ethnic background, the lady that just got dismissed is the closest thing to it as far as having jurors of my own background minority group.” Defendant identified himself as African-American. When the trial court pointed out that Prospective Juror No. 53 was “Indian,” defendant stated that Prospective Juror No. 53 was “closer in color than I am than anyone else in the room.” Defendant further stated: “There’s no African-Americans, no one close to my gender or minority group.”

The trial court noted that one of the seated jurors was “Indian” and another was “from Algiers.” The trial court then stated that the prosecutor was “not required to respond, unless she wishes to, regarding reasons for dismissing an Indian -- a woman from India.” The prosecutor stated that she “would like to just make a record.” The prosecutor noted that one of the seated jurors was from “South India.” The prosecutor then explained: “[T]he reason for kicking [Prospective Juror No. 53] is that she spoke about energy healing and that she had the gift of energy healing, I guess, since she was a child; that is part of her profession. Essentially I have concerns about her position as an energy healer and her beliefs that she’s had that skill . . . , and her ability to deliberate with the other jurors and be fair and impartial in this case, given there will be scientific testimony regarding DNA in particular.”

Following this explanation, defendant asked: “Can I rebuttal that?” The trial court told defendant to wait “a second.”

The prosecutor then stated: “There’s also the fact, Your Honor, that right now, there are eight women on the jury, and I am concerned about gender balance. The next two jurors are men, and to have more gender balance, I would prefer to have a more equal number of men. She was actually the ninth woman on a 12-person jury, and so I thought that was leaning too heavily towards women.”

Defendant then responded: “According to my understanding how we chose them -- and the lady made it through the first round, she should have came to that analysis or conclusion when the lady first stated that she made it between the question grounds, where she couldn’t be questioned again. And then if she comes up with her as far as her dismissal on her belief that she should have thought about that this first time that she made the first round of being selected. [¶] And my preface on gender or whatever has no bearing on how we chose them. We chose them on ability to understand and to rationalize the scope of Defense and the prosecution -- defense as far as proven me as being guilty, as the defendant is innocent until proven to be innocent, and she was chosen up under those grounds. And the spiritual thing afterwards, that’s her own prebiased that she didn’t come up with that conclusion, she should have been excluded the first time.”

The trial court immediately responded: “Okay. Well, thank you. I don’t find that there’s any violation of any laws, but you made your record on it and that’s the important thing.”

B. Analysis

Under Batson and Wheeler, a party “ ‘may not use peremptory challenges to remove prospective jurors solely on the basis of group bias.’ ” (People v. Rushing (2011) 197 Cal.App.4th 801, 808.) “Group bias is a presumption that jurors are biased merely because they are members of an identifiable group distinguished on racial, religious, ethnic, or similar grounds.” (People v. Fuentes (1991) 54 Cal.3d 707, 713.) Batson and Wheeler thus “prohibit peremptory challenges based solely on gender . . . .” (People v. Martin (1998) 64 Cal.App.4th 378, 382). “A defendant claiming a prosecutor has exercised peremptory challenges because of group bias must make a timely objection and establish a prima facie case of prohibited discrimination.” (People v. Reynoso (2003) 31 Cal.4th 903, 930.)

“The failure to articulate clearly a Wheeler/Batson objection forfeits the issue for appeal.” (People v. Lewis (2008) 43 Cal.4th 415, 481 (Lewis), overruled on another point in People v. Black (2014) 58 Cal.4th 912, 919; see also People v. Cunningham (2015) 61 Cal.4th 609, 662 (Cunningham) [the defendant’s “failure to clearly articulate the Batson/Wheeler objection to the peremptory challenge . . . forfeited the issue for appeal”].) Likewise, it is “incumbent on counsel, if [he] wishe[s] to pursue the matter, to secure a ruling from the trial court. The failure to do so forfeits the claim.” (Lewis, supra, 43 Cal.4th at p. 482; see also People v. Gutierrez (2017) 2 Cal.5th 1150, 1156 [“Even assuming that defendants properly made a motion challenging the prosecutor’s exclusion of females, the issue is not preserved for appeal because counsel did not obtain a ruling from the trial court.”].)

Here, defendant made a timely Wheeler/Batson objection. He objected that the prosecutor exercised a peremptory strike against Prospective Juror No. 53 based on her “ethnic background” and her “color.” On appeal, however, defendant argues that the peremptory challenge to Prospective Juror No. 53 was unlawful because it was motivated by gender bias. Defendant has not preserved this contention for appellate review because he never clearly articulated an objection based on gender bias in the trial court. Neither his original Wheeler/Batson objection nor his later comments can be construed as a clearly articulated objection that the prosecutor improperly dismissed Prospective Juror No. 53 because she was female.

Defendant originally objected that the prosecutor struck Prospective Juror No. 53, a woman from India, based on her “ethnic background” and her “color.” When defendant made this objection, he actually made clear that he was not objecting that Prospective Juror No. 53 was improperly dismissed for being female. Defendant complained that there was “no one close to [his] gender” on the jury, which was composed of nine women and three men at the point when the prosecutor struck Prospective Juror No. 53. He seemed to be complaining that there were too many women and not enough men on the jury. It is not possible to construe defendant’s original Wheeler/Batson objection as a clearly articulated objection that the prosecutor improperly dismissed Prospective Juror No. 53 because she was female.

Nor were defendant’s later comments a clearly articulated objection based on gender bias. The trial court did not find that defendant had established a prima facie case of prohibited ethnic or racial discrimination with his Wheeler/Batson objection, but it nonetheless invited the prosecutor to provide her reasons for striking a person “from India.” The prosecutor then stated that she dismissed Prospective Juror No. 53 due to “concerns about her position as an energy healer” and also due to concerns “about gender balance.” After the prosecutor’s “gender balance” comment, defendant did not clearly articulate an objection based on gender bias. Indeed, defendant’s response to the prosecutor’s statement of reasons never mentioned gender bias and was difficult to understand at all. Defendant repeatedly argued that the prosecutor should have excluded Prospective Juror No. 53 the “first time” and in the “first round . . . .” And he emphasized: “And the spiritual thing afterwards, that’s her own prebiased that she didn’t come up with that conclusion, she should have been excluded the first time.” Nothing in these comments suggested that defendant was making an objection based on gender bias.

Defendant points to the fact that he mentioned “gender” when he stated: “And my preface on gender or whatever has no bearing on how we chose them.” This ambiguous statement did not even purport to be an objection based on gender bias. It certainly was not a clearly articulated one. (See generally Cunningham, supra, 61 Cal.4th at p. 662 [there is no clearly articulated objection where “the record fails to disclose what cognizable class defendant was asserting as the basis for his Batson/Wheeler objection”].)

Defendant also failed to secure a ruling by the trial court on the issue of gender bias. The trial court never evaluated whether there was a prima facie case of gender bias but simply ruled that there was not “any violation of any laws.” This is important given that the panel was predominantly female at the time of the prosecutor’s challenge, a situation unlikely to demonstrate gender bias against females. Had defendant made such a challenge, the trial court would have been obligated to evaluate whether there was a prima facie case before seeking a statement of reasons by the prosecutor. If defendant wanted to challenge the peremptory challenge on the basis of gender bias, he was obligated to seek a ruling on the issue of gender bias. “Failure to press for a ruling . . . forfeits appellate review of the claim because such failure deprives the trial court of the opportunity to correct potential error in the first instance.” (Lewis, supra, 43 Cal.4th at p. 481.)

In sum, defendant failed to clearly articulate an objection based on gender bias and failed to secure a ruling on the issue of gender bias. He thus forfeited his claim that the peremptory challenge to Prospective Juror No. 53 was improperly motivated by gender bias. Defendant urges this court to exercise discretion and nonetheless consider the merits of the forfeited claim. (See People v. Sanchez (2014) 228 Cal.App.4th 1517, 1525 [noting that “a reviewing court may, in its discretion, decide to review a claim that has been . . . forfeited for failure to raise the issue below”].) We decline to do so. We can perform a meaningful review of a Wheeler/Batson motion only “when the record contains evidence of solid value.” (Gutierrez, supra, 2 Cal.5th at p. 1172.) Given that defendant failed to clearly articulate an objection based on gender bias and failed to secure a ruling on the issue of gender bias, we do not have such a record. Defendant’s claim is not preserved for appeal.

III. Disposition

The judgment is affirmed.

_______________________________

Mihara, J.

WE CONCUR:

_____________________________

Premo, Acting P. J.

_____________________________

Elia, J.