P. v. Hartman

Filed 6/22/07 P. v. Hartman CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, Gary S. Paer, Judge. Affirmed.

Elizabeth A. Missakian, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Pamela Ratner Sobeck and Raymond M. DiGuiseppe, Deputy Attorneys General, for Plaintiff and Respondent.

* * *

A jury found Nora Hartman guilty of residential burglary, robbery, unlawful vehicle taking, and carjacking, and found the allegations she was vicariously armed with a firearm to be true. She argues no substantial evidence supported the trial courts decision to accept the prosecutors race-neutral reasons for using peremptory challenges to excuse two of three black jurors. For the reasons expressed below, we affirm.

I

Factual And Procedural Background

In May 2005, defendant, a strip club dancer, began a sexually intimate relationship with a wealthy customer. About a week after they met she and her boyfriend, Dustin Goepner, accompanied the man to his home. She distracted the man while Goepner rummaged through the house. When the victim grew suspicious, Goepner confronted him with the victims handgun, and the duo fled with the victims Mercedes, cash, jewelry and firearm.

A jury found defendant guilty in February 2006. The court imposed the five-year midterm for carjacking and stayed (Pen. Code,  654) or struck (Pen. Code,  1385) punishment on the other counts and enhancements. The court also imposed fines and ordered defendant to pay restitution to the victim.

II

Discussion

A. Wheeler/Batson Error

1. Background Facts

During jury selection, the prosecutor used peremptory challenges to dismiss two of three African-American female jurors, identified in the record as Jurors 173 and 117. After the second dismissal, defendants lawyer moved to dismiss the jury panel under People v. Wheeler (1978) 22 Cal.3d 258, 276-277 (Wheeler) [party may not use peremptory challenges to systematically exclude jurors based on race], overruled in part on other grounds in Johnson v. California (2005) 545 U.S. 162. Defense counsel explained: Juror 117 is the second African-American female that the [prosecutor] has dismissed . . . . She is one of I have noticed three African-Americans who were in this panel. There was nothing about her responses that would indicate that she could not be fair.

Juror 117 had just replaced another juror who the defense excused after the prosecutor had accepted the jury as constituted. Juror 117 did not undergo extensive questioning.[1] She disclosed she previously had served on a jury in a criminal hit and run case and the jury had reached a verdict. Asked by the prosecutor if she had common sense, she replied affirmatively.

The court found defendant stated a prima facie case and asked the prosecutor to provide a reason for the challenge. The prosecutor responded, I hate to disappoint[] counsel but it had nothing to do with her race but had to do with her age. And what I am concerned with some sympathies toward [defendant] and the fact that she is a single woman with kids and that she is in a similar age bracket, and I had my concerns. It had nothing to do with her race. Defense counsel interjected that the prosecutor previously had excused Juror 173, also an African-American woman. The prosecutor responded that Juror 117 fits a profile, an attractive single woman of the same age, in the same age bracket as the defendant . . . with two children, and I have a concern that there may be some sympathies there.

The court asked how the jury would learn defendant had children. The prosecutor explained she anticipated testimony that would reveal defendant and her children lived with her nieces family because defendant had financial problems. The prosecutor explained it was irrelevant that the juror was unaware of these circumstances during voir dire because the jury would find those things out during trial and she had to make a determination as a prosecutor if I think that there is going to be some problems in that regard. She emphasized [i]t had nothing to do with her race at all. I left a black person on the jury. I have no problems with a black person being on the jury.

Defense counsel noted the prosecutor could not peremptorily excuse a juror based on race and sex, and that counsel did nothing to inquire of this potential juror, when she had the opportunity, about her concerns . . . . The prosecutor responded she was prohibited from getting into the facts of the case on voir dire, that she knew what the facts are, and I know the profile of this woman, and . . . that is the basis upon which I made my decision. She stated its a gut instinct I have as a prosecutor that the woman with this profile I do not want as a juror in this case. It has nothing to do with her race. I would have felt the same way if she was white or Hispanic. I have left other women on this jury. She reiterated that Juror 117 was not just single with kids . . . . Shes in the same age range as one of the defendants, shes an attractive woman as is one of the defendants, and I am just making a call as a prosecutor based on what I know the facts are . . . and . . . where sympathies may lie and . . . what I perceive and project is going to be the defense and that this woman is not a woman that I want sitting as a juror in this case.

The court denied the motion, finding the prosecutor in the courts mind had tendered a valid reason for prompting her exercise of the peremptory challenge and that that is why she went ahead and tendered the challenge.

2. Substantial Evidence Supports the Trial Courts Determination No

Wheeler/Batson Error Occurred

Defendant argues the prosecutors use of peremptory challenges violated the equal protection clause of the Fourteenth Amendment to the federal Constitution (Batson v. Kentucky (1986) 476 U.S. 79, 89) and her right to a jury drawn from a representative cross-section of the community under the California Constitution (Wheeler, supra, 22 Cal.3d at pp. 276-277).

When a defendant raises a Wheeler/Batson claim during jury selection, the trial court must undertake a three-step analysis: 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. [Citations.] [Fn. omitted.] 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, supra, 545 U.S. at p. ___, 162 L.Ed.2d at p. 138.) Although the prosecutor bears the burden of production to offer a race-neutral explanation, the burden of persuasion never shifts from the opponent of the strike. (Purkett v. Elem (1995) 514 U.S. 765, 768.)

The party seeking to justify a suspect peremptory challenge must offer a genuine, reasonably specific, race or group-neutral explanation. (People v. Fuentes (1991) 54 Cal.3d 707, 718.) The justification need not support a challenge for cause, and even a trivial reason, if genuine and neutral, will suffice. (People v. Reynoso (2003) 31 Cal.4th 903, 924 (Reynoso); see also People v. Gutierrez (2002) 28 Cal.4th 1083, 1124 [difficulty focusing on evidence may justify peremptory challenge].) As Reynoso observed, All that matters is that the prosecutors reason for exercising the peremptory challenge is sincere and legitimate, legitimate in the sense of being nondiscriminatory. [A] legitimate reason is not a reason that makes sense, but a reason that does not deny equal protection. (Reynoso, supra, at p. 924.)

Thus, the issue is whether the trial court believes the prosecutors race-neutral explanations. (Miller-El v. Cockrell (2003) 537 U.S. 322, 339.) The trial court evaluates the prosecutors credibility by weighing several factors, including the prosecutors demeanor, whether the prosecutors explanations are reasonable or improbable, and whether the proffered rationale has some basis in accepted trial strategy. (Id. at pp. 338-339). We uphold the trial courts ruling if supported by substantial evidence, [b]ut we apply this deferential standard of review only when the trial court has made a sincere and reasoned attempt to evaluate each stated reason as applied to each challenged juror. (People v. McDermott (2002) 28 Cal.4th 946, 971.) With this procedure in mind, we turn to the facts underlying defendants claim.

Preliminarily, we note defense counsel never challenged the dismissal of Juror 173, and therefore the prosecutor was not called upon to provide reasons for her dismissal. Defense counsel referred to Juror 173 merely to remind the trial court the prosecutor had excused another female African-American earlier in the proceedings. Of course, the trial court, in evaluating whether the prosecutors reasons for excusing a particular juror, may consider the circumstances of earlier peremptory challenges to jurors belonging to the same cognizable group. (Reynoso, supra, 31 Cal.4th at p. 925 [trial court obligated to evaluate all the circumstances of the case].)

Concerning Juror 117, the prosecutor explained she challenged this juror because she believed she might be unduly sympathetic to defendants plight based on shared characteristics of age and appearance and that the juror and defendant were both single mothers. Defendant argues the prosecutors reasons were transparent, clearly subjective, and not believable, but concedes subjective factors may play a legitimate role in the exercise of peremptory challenges.

Here, the trial court found the prosecutor had legitimate, nondiscriminatory reasons in exercising her peremptory challenges. The trial court accepted the prosecutors explanation as genuine, and we are in no position to second-guess that determination. (Reynoso, supra, 31 Cal.4th at p. 926.) We disagree with defendant that the record demonstrates the prosecutors discriminatory intent. The prosecutor did not challenge another African-American juror who sat on the panel, nor did she challenge other female jurors. This supports the trial courts conclusion race and sex did not animate the challenge to Juror 117 and is an indication of the prosecutors good faith. (See People v. Gray (2005) 37 Cal.4th 168, 187-188.) Moreover, the court did not adopt at face value the prosecutors representations, but asked several questions to satisfy itself the prosecutors reasons were genuine.

Defendant complains the prosecutor failed to excuse similarly situated white females. This argument is premised on an event that transpired after the jury had been sworn and excused for the day. Codefendant Goepners lawyer noted the prosecutor failed to excuse two Caucasian, single mothers in defendants approximate age group who presented the same characteristics that prompted the dismissal of Juror 117. The court noted that all parties had accepted the jury, Goepner had not joined in defendants Wheeler motion, and that his motion was untimely because the jury had been sworn.

Defendant argues Goepners motion was timely because it merely supplemented defendants earlier Wheeler motion. Defendant also contends a comparative analysis of these jurors took place in the trial court and requests us to consider this analysis within the context of the entire voir dire. Defendant is mistaken. Even assuming Goepners motion was timely, defendant failed to request the trial court to make a comparative analysis of these jurors, and therefore the prosecutor was not asked to explain why she accepted these particular jurors. Lacking this essential information, we cannot tell whether these jurors were similarly situated. To attempt an analysis here would be patently unfair to the prosecutor, especially since defendant failed to make the juror questionnaires part of the record.

Defendant incorrectly asserts the prosecutors stated reasons for exercising her peremptory challenges did not directly relate to the case being tried. It is not implausible to surmise that a single mother might be sympathetic to a similarly-situated woman of the same age whose boyfriend appeared to play the dominant role in the crimes. Just as veteran defense counsel would be leery of prospective jurors who identify with a victim or police officer, so too a prosecutor might excuse a juror who identifies with a defendant. Here, the trial court could reasonably conclude the prosecutor had not simply concocted a rational basis to exclude Juror 117.

The trial court was in the best position to assess the prosecutors credibility. It witnessed the prosecutors demeanor as she explained the basis for her challenge. The prosecutor offered a reasonable explanation for her challenge, which had a basis in accepted trial strategy. There is no basis to conclude as a matter of law that there was a racial motivation for the challenge.

III

Disposition

The judgment is affirmed.

ARONSON, J.

WE CONCUR:

RYLAARSDAM, ACTING P. J.

MOORE, J.

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[1] Apparently, prospective jurors completed questionnaires, but the questionnaires are not in the record.