P. v. Ibarra

Filed 10/5/06 P. v. Ibarra CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Paul E. Zellerbach, Judge. Reversed conditionally and remanded.

Nancy J. King, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Gil P. Gonzalez, Supervising Deputy Attorney General, and Garrett Beaumont, Senior Deputy Attorney General, for Plaintiff and Respondent.

After we reversed the judgment in this case based on our conclusion that the trial court had committed various errors in ruling on defendant’s Wheeler/Batson^[1] motions, the Supreme Court granted review. That court now has transferred the case back to this court with directions to vacate our original decision and reconsider the Wheeler/Batson issues in light of People v. Avila (2006) 38 Cal.4th 491, and People v. Johnson (2006) 38 Cal.4th 1096. Having done that, we conclude the trial court erred in finding that defendant failed to make a prima facie showing of discrimination and thus denying defendant’s Wheeler/Batson motion. In accordance with People v. Johnson, supra, we will conditionally reverse the judgment and remand the matter to the trial court for the limited purpose of attempting to conduct the remaining steps in the Wheeler/Batson analysis.

FACTS

The factual details are undisputed. Jose Ibarra (defendant) admitted killing his wife by hitting her in the head with an axe. The only issue at trial was defendant’s mental state at the time. According to his statement to the police, and his testimony at trial, defendant suspected that his wife was seeing another man. As a result of that suspicion, on the morning of April 11, 2001, defendant left the house to go to work but changed his mind and returned home around 5:00 a.m. Defendant found his wife about to leave the house. When defendant confronted her, his wife told him that she was just going for a walk. Defendant did not believe her and later, when the two were in the garage about to leave together for work, defendant again asked his wife why she had been leaving the house so early. When she again said that she had been about to go out for a walk, defendant told her that he would hit her if she did not tell him the truth. As he made that statement, defendant grabbed the first thing that he saw, a small axe or hatchet, and hit his wife on the back of the head with it. Defendant told the police that he did not know how many times he struck his wife but that he continued to hit her with the axe because he did not believe her.

When he did stop striking her, defendant either fainted or fell asleep and when he awoke, after about an hour, he saw only a small amount of blood on his wife’s hands.^[2] Defendant believed his wife had fainted and did not think that she was dead. Defendant told a neighbor what had happened and then went home and told his three daughters. One of defendant’s daughters went to the garage and screamed after spotting her mother’s body on the garage floor. Two neighbors rushed over in response to the scream. One of the neighbors performed CPR on Mrs. Ibarra while the other spoke with the 911 operator. Mrs. Ibarra died as a result of the blows to her head.

The jury found defendant guilty of second degree murder in connection with the killing of his wife and further found true the special allegation that he personally used a deadly weapon, specifically an axe, to commit that crime. The trial court sentenced him to serve a term of 16 years to life in state prison based on the jury’s verdict and true finding.^[3] Additional facts will be discussed below as relevant to the issues defendant raises on appeal.

DISCUSSION

We first address defendant’s claim that the trial court erred in denying his Wheeler/Batson motions.

1.

WHEELER/BATSON ISSUES

During jury selection, defendant made three motions to dismiss the prospective jury panel based on what defendant claimed was the prosecutor’s systematic exclusion of Hispanic and African-American jurors. The trial court denied each of those motions. Defendant contends the trial court, for various reasons, erred. For reasons we now explain, we agree with defendant.

A. Procedural Background

Defense counsel first moved to dismiss the jury panel after the prosecutor excused Mr. F. who is Hispanic. In that motion, defense counsel pointed out that the prosecutor had previously used peremptory challenges to dismiss Ms. R.-D., also Hispanic, and Mr. D., an African-American. The trial court, without first finding that defense counsel had made the requisite prima facie showing, offered explanations for the prosecutor’s action -- that Mr. D. and Mr. F. both had “unpleasant and unfavorable experiences with law enforcement.” After noting that defense counsel had also excused a prospective juror of “Hispanic origin,” the trial court denied defense counsel’s motion, without discussing Ms. R.-D.

Defense counsel again moved to dismiss the jury panel after the prosecutor used a peremptory challenge to dismiss another Hispanic prospective juror, Ms. V. This time defense counsel objected not only to the prosecutor’s use of the peremptory challenge but also to the trial court’s procedure for addressing defendant’s Wheeler claims.^[4] With respect to the procedure, defense counsel noted that although the trial court heard the motion at sidebar, the trial court did not rule on the merits of the claim until later when the jury took a scheduled break. Defense counsel complained that in the interval between defendant’s objection and the trial court’s ruling, the composition of the jury had changed because the prosecutor had excused Ms. S., another female Hispanic juror.

The trial court justified the procedure by explaining that the court had not been inclined to grant the Wheeler motion and therefore continued with jury selection until “it was a convenient and appropriate time to take a recess and have this discussion on the record.” As for the prosecutor excusing Ms. V., the trial court noted, first, that defense counsel had dismissed a female juror with a Hispanic surname, although the court was “not sure if she, herself, is Hispanic or not.”^[5]

In responding to defendant’s objection to the prosecutor’s peremptory challenge of Ms. V., the trial court again offered a possible explanation for the prosecutor’s conduct -- that Ms. V. “was involved for 17 years in a very odd, strange relationship with her husband who was continually in and out of prison, and I found her responses and reactions to that somewhat unusual. And eventually, she did divorce him, but she was married to him for 17 years and indicated he was rarely home for more than a few days or weeks before he would be sent back to prison. So I think the People’s exercise of the peremptory challenge with respect to her does not constitute a violation of the Batson-Wheeler standard as far as disqualifying a class of some ethnic group or having some ethnic basis for the excusal of a juror.”

As for Ms. S., after defense counsel pointed out that she was the fourth Hispanic the prosecutor had excused, the trial court stated, “I think with respect to her excusal, I think a prima facie case now does appear in the Court’s mind and I’m going to ask the People to give an explanation or justification for her excusal.” The prosecutor then offered three reasons for excusing Ms. S. First, the prosecutor stated that another deputy district attorney had overheard Ms. S. talking outside the courtroom during a recess. That deputy district attorney had warned the prosecutor that he should watch out for Ms. S. because she seemed too interested in understanding the attorney’s reasons for excusing jurors. Second, the prosecutor noted that Ms. S.’s daughter had been the victim of a “288” but Ms. S. did not know what had happened to the person “who victimized her daughter and that her solution to the problem was simply to ship her daughter to another area of the country, apparently. And [the prosecutor] felt as though that that didn’t -- she wasn’t showing a significant interest in her daughter by not following up with this person who . . . apparently was predatory towards her daughter.” Third, the prosecutor noted that Ms. S. was “divorced” and had “no idea” what her ex-husband was doing. To the prosecutor “that indicated a lack of ability to constructively resolve a dispute, you know, showing that she has no contact with her ex-husband, so those are my reasons. They have nothing to do with her ethnicity.”

The trial court shared the prosecutor’s view of Ms. S. and stated that “it is somewhat odd or strange” that she did not appear to “show that much concern about what happened to her daughter or what happened to the perpetrator of that offense,” and that she “did indicate that she’s had no contact with her daughter” who apparently was living “somewhere on the East Coast.” The trial court also noted that Ms. S.’s father is a law enforcement officer with Los Angeles Police Department and that she may have had another relative involved in law enforcement, which “makes one wonder even more when she has that background.” In the trial court’s opinion, “It’s all very strange and very odd and unusual at best for a mother to conduct herself that way.” The trial court then denied defendant’s Wheeler motion.

Defense counsel made a third Wheeler motion when the prosecutor excused Mr. T., an African-American. As with the previous motions, the trial court did not address this motion on the record until a later break in the proceedings at which time the jury had been accepted by both sides and sworn. When it did address defendant’s motion, the trial court noted that defense counsel had excused an African-American and a Hispanic just before the prosecutor excused Mr. T. After noting that the jury included two Hispanics and one Asian, the trial court denied defendant’s motion. Defendant later renewed each of his Wheeler objections in a motion for new trial, which the trial court also denied.

B. Analysis

Defendant contends that the trial court’s procedure for addressing the Wheeler issues was unfair and that the trial court erred when it denied defendant’s motions because the prosecutor had failed to offer race-neutral reasons for excusing the challenged jurors. It does appear from the record that the trial court was unfamiliar with or confused about the procedure for assessing the merits of defendant’s Wheeler objections. We first address that aspect of defendant’s claim.

Our state Supreme Court recently reiterated the pertinent principles and procedure in People v. Avila: “A prosecutor’s use of peremptory challenges to strike prospective jurors on the basis of group bias -- that is, bias against ‘members of an identifiable group distinguished on racial, religious, ethnic, or similar grounds’ -- 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. [Citations.] Such a practice also violates the defendant’s right to equal protection under the Fourteenth Amendment to the United States Constitution. [Citations.]” (People v. Avila, supra, 38 Cal.4th at p. 541, citing Wheeler, supra, 22 Cal.3d at pp. 276-277, and Batson, supra, 476 U.S. at p. 88.)

“The United States Supreme Court has recently reaffirmed that Batson states the procedure and standard to be used by trial courts when motions challenging peremptory strikes are made. ‘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.] 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.]’ [Citation.]” (People v. Avila, supra, 38 Cal.4th at p. 541, quoting Johnson v. California (2005) 545 U.S. 162, ___ [162 L.Ed.2d 129, 125 S.Ct. 2410, 2416, fn. omitted.)^[6]

“We review the trial court’s ruling on the question of purposeful racial discrimination for substantial evidence. [Citation.] It is presumed that the prosecutor uses peremptory challenges in a constitutional manner, and we give deference to the court’s ability to distinguish ‘bona fide reasons from sham excuses.’ [Citation.] As long as the court makes a ‘sincere and reasoned effort to evaluate the nondiscriminatory justifications offered, its conclusions are entitled to deference on appeal.’ [Citation.]” (People v. Avila, supra, 38 Cal.4th at p. 541.)

i. First Wheeler Motion

Defendant’s first Wheeler motion was directed at the prosecutor’s peremptory challenges of two Hispanics and an African-American. The trial court did not determine whether defendant had made a prima facie showing but, as set out above, offered its own explanations for the prosecutor’s action. The trial court denied defendant’s motion after noting that defense counsel also had excused a prospective juror of “Hispanic origin.”

The trial court’s comments set out above suggest the trial court is of the view that Batson and Wheeler require the defendant to make a prima facie showing of “systematic exclusion” based on race or ethnicity. No such showing is required. (People v. Arias (1996) 13 Cal.4th 92, 136.) A single peremptory challenge based on race or group bias violates Wheeler and Batson. (People v. Montiel (1993) 5 Cal.4th 877, 909.) Nor is the fact that defendant dismissed minority jurors relevant in determining whether defendant has made a prima facie showing that the prosecutor has engaged in the discriminatory use of peremptory challenges. (People v. Arias, supra, 13 Cal.4th at pp. 136-137.) What is required is that the moving party make a prima facie showing that the prospective juror was challenged because of bias against the cognizable racial or ethnic group to which the juror belongs rather than because of specific bias pertinent to the juror as an individual. (People v. Box (2000) 23 Cal.4th 1153, 1188.)

If the trial court finds that the moving party has made the required showing, the burden shifts to the opposing party to offer a race-neutral explanation. Here, the judge provided the explanation based on the judge’s view that, if a race-neutral reason could be provided, then no prima facie showing had been made.^[7] The trial court’s view is wrong. Once a trial court finds that a prima facie showing has been made, the burden shifts to the prosecutor to offer a race-neutral justification. The crucial factors in assessing the validity of that justification are whether the prosecutor’s explanation is not only race neutral, but also genuine. (People v. Arias, supra, 13 Cal.4th at p. 136.) Therefore, the prosecutor, not the trial court, must provide the explanation. In short, the pertinent inquiry is not whether any race-neutral explanation can be offered, but rather whether the prosecutor actually has a neutral and specific basis other than race or ethnicity for excusing the prospective juror.

Viewed according to the correct standard, the trial court properly denied defendant’s first Wheeler motion because defendant failed to make the requisite prima facie showing. Defendant, as set out above, showed only that Ms. R.-D. and Mr. F. were both Hispanic and Mr. D. was African-American. Demonstrating only that the excused jurors were members of cognizable groups is insufficient to establish a prima facie showing of group bias. (People v. Howard (1992) 1 Cal.4th 1132, 1154.) Therefore, we must conclude that the trial court properly denied defendant’s first Wheeler motion even though the court applied the wrong standard in doing so. (People v. Howard, supra, 1 Cal.4th at p. 1155.)

ii. Second Wheeler Motion

In his second Wheeler motion, which defendant made after the prosecutor excused Ms. V. and Ms. S., both of whom are Hispanic, defendant asserted that neither of these two jurors had “expressed any sympathy for [defendant] or any inclination based on their own experience or the experience of those close to them to have any sort of bias or partiality in favor of [defendant] or for that matter, against the prosecution.” The trial court found defendant made a prima facie showing as to Ms. S. but then denied defendant’s motion after the prosecutor offered his explanations for excusing her.

Defendant contends that once the trial court found he had made a prima facie showing of group bias, the burden shifted to the prosecutor to explain not only the current peremptory challenge (in this case the prosecutor’s excusal of Ms. S.), but also each of the previously questioned peremptory challenges (in this case the excusal of Ms. V., Ms. R.-D., Mr. F., and Mr. D.). When we initially addressed this issue we relied on various cases including People v. McGee (2002) 104 Cal.App.4th 559, and agreed with defendant. However, the Supreme Court held otherwise in People v. Avila, supra, 38 Cal.4th 491, and in doing so disapproved of People v. Mcgee. Specifically, the court held “that[] when a trial court determines that the defendant has made a prima facie showing that a particular prospective juror has been challenged because of [group] bias, it need not ask the prosecutor to justify his challenges to other prospective jurors of the same group for which the Batson/Wheeler motion has been denied.” (People v. Avila, supra, 38 Cal.4th at p. 549.) Accordingly, we reject defendant’s contention that his prima facie showing with respect to Ms. S. required the prosecutor to offer a race-neutral explanation for each of the previous peremptory challenges to which defendant raised a Wheeler/Batson objection.

Moreover, to the extent defendant purports to challenge the prosecutor’s explanation for excusing Ms. S., we must also reject that claim. “The party seeking to justify a suspect excusal need only offer a genuine, reasonably specific, race- or group-neutral explanation related to the particular case being tried. [Citations.] The justification need not support a challenge for cause, and even a ‘trivial’ reason, if genuine and neutral, will suffice. [Citations.]” (People v. Arias, supra, 13 Cal.4th at p. 136.) “‘If the trial court makes a “sincere and reasoned effort” to evaluate the nondiscriminatory justifications offered, its conclusions are entitled to deference on appeal. . . .’ [Citation.]” (Ibid.) In short, if the trial court made a “sincere and reasoned” assessment of the prosecutor’s explanation and the excused juror’s responses support the prosecutor’s explanation and the trial court’s findings, we must affirm. (People v. Arias, supra, at p. 187.)

The prosecutor, as recounted above, offered three explanations for excusing Ms. S., all of which were race neutral. The record, set out above, indicates that the trial court evaluated the prosecutor’s reasons and accepted the explanation. Because the excused juror’s responses support both the prosecutor’s explanation and the trial court’s findings, we must affirm. (People v. Avila, supra, 38 Cal.4th at p. 541.)

iii. Defendant’s Third Wheeler Motion

As previously noted, defendant made a third Wheeler objection when the prosecutor used a peremptory challenge to excuse Mr. T., an African-American juror. In making that objection, defense counsel stated that Mr. T., “who was a black man, light-skinned black man, indicated nothing in the way of bias, prejudice or any reason why he wouldn’t want to sit or serve or anything else. He had prior jury experience. Seemed to be very straightforward, very responsive to the questions, both to Court and counsel.” In denying defendant’s motion the trial court stated that it did not find “that the People have systematically excluded minorities from the jury” and in any event just before the prosecutor discharged Mr. T., defendant had discharged an African-American juror. The trial court also noted “that the jury does consist of at least two Hispanics and one Asian.”

As previously discussed, systematic exclusion is not required. A single improperly exercised peremptory challenge violates Wheeler and Batson. (People v. Montiel, supra, 5 Cal.4th at p. 909.) Defendant’s conduct in excusing jurors as well as the ultimate composition of the jury are equally irrelevant in assessing whether the defendant has made a prima facie showing under Wheeler and Batson that the prosecutor has improperly exercised a peremptory challenge. (People v. Arias, supra, 13 Cal.4th at p. 137.)

Although the trial court did not follow the correct procedure and in fact made irrelevant findings, we nevertheless construe the trial court’s action as a finding that defendant failed to make a prima facie showing of group-based bias. Under such circumstances, People v. Howard counsels that we must review the entire record of jury selection to determine whether the record supports such a finding and must affirm if the record includes facts that the prosecutor might reasonably have relied on to excuse Mr. T. (People v. Howard, supra, 1 Cal.4th at p. 1155.)

Our review of the record of jury selection persuades us that the trial court erred in finding that defendant had not made a prima facie showing that the prosecutor exercised his peremptory challenge of Mr. T. in a racially discriminatory manner. Defendant established that Mr. T., although light skinned, nevertheless is an African-American man and therefore a member of a cognizable group.^[8] Defendant also made as complete a record as possible, citing Mr. T.’s answers to numerous questions, and in doing so showed established facts that give rise to an inference the prosecutor excused Mr. T. because of his race. (People v. Johnson, supra, 38 Cal.4th at pp. 1098-1099.)

We have reviewed the record, as we must, and find nothing in Mr. T.’s responses to any of the questioning on voir dire that suggests an obvious race-neutral basis for excusing him from the jury panel. Mr. T.’s biographical information reveals that he is single, has no children, lives in Riverside and works in Palm Springs for a company that manufactures ventilators and respirators. About 10 years earlier, Mr. T. served on a civil jury that reached a verdict. He stated that he had “no reason not to have an open and impartial mind on the case before us.” In response to specific questioning by the prosecutor, Mr. T. stated that he “absolutely” agreed that the People have a right to a fair trial. When the prosecutor asked whether there is any particular way a victim of crime looks or acts, Mr. T. answered, “No, not that I am aware.” Mr. T. confirmed that “a victim of crime can be any person at any time” and that the victim’s ethnicity does not matter. When the prosecutor asked whether the victim’s lifestyle choices would make any difference to him, Mr. T. answered, “It’s their choice.” Mr. T. also stated that there was nothing in his experience or background that would make him biased against the victim or the prosecution, and sympathetic to defendant, if there was evidence presented that showed the victim was an adulterer. Mr. T. stated, “I’m just looking at the case you present to me. I’m not judging what either one did.”

The record on appeal does not disclose an obvious reasonable race-neutral basis for excusing Mr. T. from the jury. The absence of such a reason combined with the trial judge’s failure to follow the correct procedure, including his reliance on irrelevant and therefore improper grounds to deny defendant’s Wheeler objections, requires us to conclude the trial court erred in finding that defendant failed to make the required prima facie showing with respect to Mr. T.

In originally addressing this issue, we held that the error required reversal of the judgment. However, the Supreme Court said otherwise in People v. Johnson, supra. The appropriate further proceeding is to remand the case to the trial court. The trial court, in turn, “should attempt to conduct the second and third Batson steps.” (People v. Johnson, supra, 38 Cal.4th at p. 1103.) Accordingly, we will remand this matter to the trial court and on remand, the trial court should require the prosecutor to explain his challenge of Mr. T. “If the prosecutor offers a race-neutral explanation, the court must try to evaluate that explanation and decide whether defendant has proved purposeful racial discrimination. If the court finds that, due to the passage of time or any other reason, it cannot adequately address the issues at this stage or make a reliable determination, or if it determines that the prosecutor exercised his peremptory challenges improperly, it should set the case for a new trial. If it finds the prosecutor exercised his peremptory challenges in a permissible fashion, it should reinstate the judgment.” (Id. at pp. 1103-1104.)

iv. Trial Court’s Wheeler Procedure

Because we are conditionally reversing the judgment, we will briefly address defendant’s challenge to the procedure the trial court used to address defendant’s Wheeler/Batson motions. We note, at least with respect to defendant’s first two Wheeler objections, that the trial court ruled on those objections during a sidebar conference but waited until the next recess in the proceedings to put the rulings on the record. There is nothing wrong with that approach.

With respect to defendant’s third Wheeler motion, however, the record reveals that the trial court delayed even hearing defendant’s claim. That delay suggests the trial court had decided to deny that motion before the court had even heard the merits. Obviously, such an approach is improper. As previously discussed, once a defendant objects to the prosecutor’s use of a peremptory challenge on Wheeler/Batson grounds, the trial court must decide whether the defendant has made a prima facie showing, i.e., whether defendant’s evidence supports an inference that discrimination has occurred. If the trial court finds that defendant has made a prima facie showing then the burden shifts to the prosecutor to offer a race-neutral justification for the challenge. (People v. Johnson, supra, 38 Cal.4th at p. 1098-1099; People v. Avila, supra, 38 Cal.4th at p. 541.) “[T]here is authority for the proposition that once the trial court has ruled, expressly or by implication, that a prima facie case has been made and that the burden has shifted to the prosecution, the court may not then ‘return to the screening process. The sole issue then pending is the adequacy of the justifications.’ [Citations.]” (People v. Fuentes, supra, 54 Cal.3d at p. 717.) The same limitation should also apply when the defendant has made an objection under Wheeler -- the trial court may not return to jury selection without first ruling on whether the defendant has made the required prima facie showing. If the trial court finds that the defendant has not made the required showing, the court may then resume jury selection and postpone putting that ruling on the record until the next recess. However, the trial court may not postpone ruling on the objection. We encourage the trial court in the future to follow the correct procedure.

Although we are reversing the judgment in this case, that reversal is conditional and limited only to the Wheeler issue. Because defendant raises other claims of error which if valid would also affect the judgment or would provide guidance in the event of a retrial, we will address defendant’s remaining claims of error.

2.

MISTRIAL MOTIONS

Defendant twice moved for a mistrial in this action. He made the first motion after the prosecutor had several times interrupted defense counsel’s opening statement with objections directed primarily at the admissibility of statements defendant had made to his daughters shortly after the crime in which defendant purported to explain what he had done and why. The trial court did not rule on the mistrial motion but did rule that defendant’s statements to his daughters were admissible as expressions of defendant’s state of mind at the time of the killing.

Defendant made a second mistrial motion when, during the defense case-in-chief, the trial court sustained the prosecutor’s hearsay and foundation objections to the testimony of Detective Paul DeJong, the Riverside City police officer who first arrived at the scene and initially spoke with defendant. In discussing that ruling outside the presence of the jury, the trial court explained that it had sustained the objection because the court was concerned the detective, who did not speak Spanish, had not clearly understood what defendant, who spoke very little English, was actually saying. Defendant moved for the mistrial out of apparent frustration with the trial court’s view that the detective might not have correctly understood what defendant had said and therefore the detective’s testimony relating defendant’s statements would be inadmissible. In making this second mistrial motion, defendant again cited the prosecutor’s interruptions during defendant’s opening statement and attributed those interruptions to the trial court because the court had initially sustained the prosecutor’s objections. Defendant then argued that the cumulative effect was that the trial court had made defense counsel look like a liar to the jury. After extensive argument, the trial court denied defendant’s mistrial motion.^[9]

In this appeal, defendant contends that both the trial court and the prosecutor committed misconduct as a result of which defendant was denied his right to a fair trial. More particularly, defendant argues that by allowing the prosecutor to object during the defense opening statement, by changing its rulings on the admissibility of certain evidence, and in generally failing to control the prosecutor’s actions, the trial court made defense counsel look bad and thereby deprived defendant of his right to a fair and impartial proceeding. We disagree.

“A trial court commits misconduct if it persistently makes discourteous and disparaging remarks to defense counsel so as to discredit the defense or create the impression it is allying itself with the prosecution.” (People v. Carpenter (1997) 15 Cal.4th 312, 353, citing People v. Fudge (1994) 7 Cal.4th 1075, 1107 and People v. Clark (1992) 3 Cal.4th 41, 143.) The actions that defendant contends were disparaging and therefore constituted misconduct are in fact the usual and ordinary occurrences of trial. Although it is not common for a party to object during the opponent’s opening statement, it is not necessarily improper to do so. The prosecutor objected to arguments based on evidence the prosecutor believed was inadmissible hearsay. The trial court in turn initially shared the prosecutor’s view and sustained the prosecutor’s objections, although the court later changed its mind and allowed the statements in as evidence at trial.

Defendant does not claim that the prosecutor’s objections were unfounded. Instead, he takes issue with the manner in which the prosecutor asserted the objections. In particular, defendant claims that the challenged statements had been admitted at his preliminary hearing and therefore he believed they would also be admitted at trial. Based on that belief, defense counsel referred to the statements during his opening statement. In defendant’s view, if the prosecutor believed the statements were inadmissible at trial, he should have raised the issue in an in limine motion rather than objecting to defendant’s opening statement. Defendant made this same argument in the court below and it prompted a lengthy discussion between the trial court and the attorneys. Defendant did not cite any authority in the trial court, nor does he cite any authority in this appeal, to support his view that the prosecutor was required to raise the issue and to do so by way of an in limine motion rather than by objecting during defendant’s opening statement. Nor does defendant cite any authority that makes it improper for a trial court to rule on the prosecutor’s objections.

We do not share defendant’s view that the trial court’s actions during the course of trial had the effect of making defense counsel look bad or “like a monkey,” as defense counsel characterized it.^[10] It is commendable that the trial judge was open to the possibility that his earlier rulings had been incorrect and that he changed those rulings after giving the question additional thought and consideration. If anyone looked bad as a result, it was the judge, not defense counsel. We simply do not share defendant’s view that the trial court committed misconduct.

Defendant’s prosecutorial misconduct claim is based not only on the prosecutor’s objections during defendant’s opening statement but also on the prosecutor’s failure to timely disclose fingerprint and blood spatter evidence.^[11] Under federal law, a prosecutor’s conduct constitutes misconduct if it “‘so infected the trial with unfairness as to make the resulting conviction a denial of due process.’ [Citation.]” (Darden v. Wainwright (1986) 477 U.S. 168, 181, [106 S.Ct. 2464, 2471, 91 L.Ed.2d 144].) “‘Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves “‘”the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.”’” [Citation.]’ [Citation.]” (People v. Hill (1998) 17 Cal.4th 800, 819.)

Defendant has not demonstrated that the prosecutor engaged in misconduct within the meaning of either the state or federal definition. The prosecutor’s objections during opening statement were not improper, as previously discussed. The belated production of the forensic evidence did not render defendant’s trial fundamentally unfair. Defendant has not shown that the prosecutor’s failure to disclose that evidence in a timely manner was intentional or constituted deceptive or reprehensible conduct.

But even if we were to conclude otherwise, prosecutorial misconduct requires reversal of a conviction only if it is prejudicial. “Misconduct that infringes upon a defendant’s [federal] constitutional rights mandates reversal of the conviction unless the reviewing court determines beyond a reasonable doubt that it did not affect the jury’s verdict. [Citations.] A violation of state law only is cause for reversal when it is reasonably probable that a result more favorable to the defendant would have occurred had the district attorney refrained from the untoward [argument]. [Citations.]” (People v. Pigage (2003) 112 Cal.App.4th 1359, 1375.)

Defendant did not claim in the trial court nor does he claim in this appeal that the delay in obtaining the forensic evidence was prejudicial. The fingerprint evidence pertained to a print recovered from the axe that defendant used to kill his wife. Defendant admitted that he used the axe to kill his wife but claimed he had acted in the heat of passion engendered when he purportedly saw her with another man. Moreover, the trial court instructed the jury in this case according to CALJIC No. 2.28 that the prosecutor had not complied with its statutory duty to produce the forensic evidence in question in a timely manner, that the failure was without justification, and that the weight and significance of the belated disclosure was for the jury to decide, after considering the relative importance of that evidence. In short, even if we were to agree with defendant’s claim that prosecutor engaged in misconduct, that error was harmless beyond a reasonable doubt in this case. (People v. Pigage, supra, 112 Cal.App.4th at p. 1375.)

For each of the reasons discussed, above, we reject defendant’s judicial and prosecutorial misconduct claims.

3.

INVOLUNTARY MANSLAUGHTER INSTRUCTION

Defendant claims that the trial court committed reversible error by refusing defendant’s request to instruct the jury on involuntary manslaughter. The trial court did so based on its view that the evidence did not support an involuntary manslaughter instruction. We agree with the trial court.

The pertinent legal principle is well settled. A trial court’s duty to instruct the jury, whether sua sponte or on request, depends initially on whether there is evidence to support the instruction. Specifically, a trial court must instruct on those legal principles that are “‘”closely and openly connected with the facts before the court.”’” (People v. Breverman (1998) 19 Cal.4th 142, 154.)

Defendant contends as he did in the trial court that involuntary manslaughter instructions were warranted based on defendant’s testimony that he did not intend to kill his wife and that he did not know what he was doing. According to defendant, that evidence warrants an instruction on involuntary manslaughter according to a theory of that crime that defendant claims is articulated in People v. Cameron (1994) 30 Cal.App.4th 591.

Although we do not share defendant’s interpretation of People v. Cameron, supra, we will not discuss that point. Defendant’s argument is based entirely on his assertion that there was evidence to show that he did not know what he was doing. There was no such evidence. In his trial testimony, defendant stated, in pertinent part, that he hit his wife twice in the back of the head with the axe. After the first blow, Mrs. Ibarra asked defendant what he was doing and tried to cover the back of her head with her hands. After the second blow, Mrs. Ibarra screamed and fell to the ground. Defendant testified, “I think that at that moment I had lost my mind by then.” When asked what he did next, defendant said that he started to hit his wife with the axe again after she fell to the ground and that he continued to hit her with the axe. When asked whether he thought he might kill Mrs. Ibarra if he continued to hit her, defendant answered, “By that time I snapped. I lost control. And I -- I became someone that I -- wasn’t me.” When asked why he kept hitting his wife, defendant stated, “Again, that was the only time that something like this happened to me. And at the time that this was happening, I just lost control. I -- it’s just I couldn’t believe it was me doing that.”

The noted testimony shows that defendant knew that he was hitting his wife with the axe. What he was unaware of, or simply was not thinking about, were the consequences of his action. Defendant also could not explain why he kept hitting his wife after she had fallen to the ground. That evidence does not support any theory of involuntary manslaughter, even the purported nonstatutory theory posited by defendant, and at most describes the classic voluntary manslaughter scenario stemming from a jealous rage. The trial court did instruct the jury on voluntary manslaughter as a lesser offense to the charged crime of murder. Because the evidence did not support involuntary manslaughter instructions, we must reject defendant’s final claim of error in this appeal.

DISPOSITION

The judgment is conditionally reversed and the case remanded to the trial court for the limited purpose of allowing the prosecutor to complete steps two and three under Batson v. Kentucky, supra. On remand, the trial court should require the prosecutor to explain his peremptory challenge of Mr. T. If the prosecutor is unable to offer a race-neutral explanation, then the trial court must grant defendant’s Wheeler motion and set the case for a new trial. If the prosecutor offers a race-neutral explanation, then the court must try to evaluate that explanation and decide whether defendant has proved purposeful racial discrimination. If the court finds that, due to the passage of time or any other reason, it cannot adequately address the issues at this stage or make a reliable determination, or if it determines that the prosecutor exercised his peremptory challenges improperly, it should set the case for a new trial. If it finds the prosecutor exercised his peremptory challenges in a permissible fashion, the court should reinstate the judgment.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

/s/ McKinster

Acting P. J.

We concur:

/s/ Gaut

J.

/s/ King

J.

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^[1] People v. Wheeler (1978) 22 Cal.3d 258 and Batson v. Kentucky (1986) 476 U.S. 79 [106 S.Ct. 1712, 90 L.Ed.2d 69].

^[2] In his statement of the facts, defendant notes the absence of blood on the axe as well as on his hands and clothing, as if that were significant. Defendant testified that his wife was wearing a hooded sweatshirt at the time and that when she fell down on the floor of the garage, the hood covered the back of her head. That in our view explains the absence of blood in what otherwise should have been a very bloody crime.

^[3] Correctly stated, the trial court sentenced defendant to a determinate term of one year on the weapon’s use enhancement to be followed by an indeterminate term of 15 years to life on the second degree murder conviction.

^[4] We use the designation “Wheeler motion” generically and intend that term to include defendant’s motion under Batson v. Kentucky.

^[5] When defense counsel noted that the juror in question “certainly didn’t appear to be [Hispanic],” the trial court commented, “I’m not certain of that, but nonetheless, it’s reasonable to assume that her husband is of Latin or Hispanic descent. So even though she may not be, she’s involved in a relationship with someone who is.”

^[6] In Johnson v. California, supra, the Supreme Court held that the “more likely than not” standard used in California to make a prima facie showing of group bias “is an inappropriate yardstick by which to measure the sufficiency of a prima facie case.” (Johnson v. California, supra, 545 U.S. at p. ___ [125 S.Ct. at p. 2416].) “Instead, the court held, ‘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.’ [Citation.]” (People v. Johnson, supra, 38 Cal.4th at pp. 1098-1099, quoting Johnson v. California, supra, 545 U.S. at p. ___ [125 S.Ct. at p. 2417].)

^[7] According to the trial court, “If there is an independent justification with respect to a specific juror, whether it be of Hispanic descent, an African-American, or a Caucasian, then I don’t believe that a prima facie case has necessarily been raised.”

^[8] After the trial court denied defendant’s Wheeler motion, the prosecutor commented that it was not clear that Mr. T. is an African-American, a view the prosecutor believed the trial court shared. The trial court, however, rejected the prosecutor’s assertion and agreed with defense counsel that Mr. T. appeared to the court to be a light-skinned African-American.

^[9] With respect to Detective DeJong’s testimony, the trial court allowed defendant to lay the appropriate foundation, i.e., to show that the detective understood what defendant had said to him, and the trial court ultimately allowed the detective to relate those statements to the jury.

^[10] During his opening statement, defense counsel sat down and refused to continue, after first accusing the trial court of not allowing him to make an opening statement, because the trial court had sustained several of the prosecutor’s objections.

^[11] As additional support for his claim of prosecutorial misconduct, defendant cites the prosecutor’s use of peremptory challenges in a discriminatory manner. However, it has not been established that the prosecutor engaged in such conduct. If that fact is established on remand, then defendant will be afforded a new trial.