P. v.
Filed 6/13/13 P. v. Jackson CA2/8
Opinion following recall of remittitur
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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
SECOND APPELLATE
DISTRICT
DIVISION EIGHT
THE PEOPLE,
Plaintiff
and Respondent,
v.
MICHAEL JACKSON,
Defendant
and Appellant.
B177201
(Los
Angeles County
Super. Ct.
No. TA063472)
APPEAL
from the judgment of the Superior Court
of
County. Kelvin D.
Filer, Judge. Reversed and remanded.
Marilee
Marshall, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Lance E. Winters, Assistant Attorney General, Michael R. Johnsen and
Thomas C. Hsieh, Deputy Attorneys General, for Plaintiff and Respondent.
_______________________
A jury fails to
reach a verdict. Three of the four
jurors who vote to acquit the defendant are African-American women. Upon retrial, the prosecutor uses four of his
first eight peremptory challenges to strike African-American women from the
jury. For one of the African-American
women whom he strikes, he offers three justifications in response to the
African-American defendant’s motion under People
v. Wheeler (1978) 22 Cal.3d 258 (Wheeler): two of those reasons apply to a
non-African-American woman in the jury box whom the prosecutor does not strike,
and the third reason draws little, if any, support from the record. The court accepts the prosecutor’s reasons
and denies the defendant’s Wheeler
motion. We reverse.
FACTS AND PROCEEDINGS
In
2002, a jury convicted appellant Michael Jackson on two counts of
counts of false imprisonment for stealing a tractor-trailer from a warehouse in
Carson. In an unpublished decision in 2003, we
overturned the convictions and remanded the case for retrial because the trial
court had erroneously admitted evidence that appellant had committed seven
other warehouse robberies. (
The
People retried appellant. The retrial ended
in a mistrial after the jury failed to reach a verdict, with eight jurors
voting to convict and four jurors ‑‑ three of whom were
African-American women ‑‑ voting to acquit.
The
People retried appellant again. During
voir dire of what was to become the third jury to hear appellant’s case, the
prosecutor exercised four of his first eight peremptory challenges to remove
African-American women from the jury.
Defense counsel moved under Wheeler,
arguing the prosecutor was exercising his peremptory challenges against
African-American women with a discriminatory
intent. Finding defense counsel had
made a prima facie showing under Wheeler,
the trial court ordered the prosecutor to explain his four peremptory challenges.
The
prosecutor’s explanation began with rejecting defense counsel’s suggestion that
the prosecutor was removing African-American women from the jury as a trial
tactic intended to prevent repetition of the not-guilty votes by
African-American women in the first retrial.
The prosecutor told the court the previous jury had hung because four
jurors had voted to acquit appellant not based on the evidence, but from
sympathy for appellant. Thus, the
prosecutor explained, he wanted to remove jurors whom he perceived as
“sympathetic.†The prosecutor then
offered his reasons for excusing the four African-American women. (We examine the prosecutor’s stated reasons
for excusing one of those jurors, identified by her initials as C.B.,
neutral, the court denied appellant’s Wheeler
motion. Once empanelled, the third jury
convicted appellant of the original charges.
Appellant
appealed from the renewed convictions.
On review, we easily affirmed in an unpublished decision the trial
court’s denial of appellant’s Wheeler
motion as to three of the four peremptorily challenged African-American female
jurors. (People v. Jackson
(Dec. 27, 2005,
B177201).) As for the fourth juror known
as C.B., however, we were troubled. (
removing her from the jury: she wore
bright clothing; she was a retired nurse; and, her memory about her prior jury
service was allegedly poor. We concluded
that the prosecutor’s explanation for excusing C.B. “pass[ed] muster – but just
barely.†(Ibid.)
In
making his Wheeler motion in the
trial court, defense counsel had engaged in a partial “comparative analysis†of
the prosecutor’s reasons for excluding C.B.
Defense counsel pointed out to the court that the prosecutor had
accepted three non-African-American jurors who were wearing bright
clothing. (See Miller-El v. Dretke (2005) 545 U.S. 231, 241 (
black panelist applies just as well to an otherwise-similar nonblack who is
permitted to serve, that is evidence tending to prove purposeful
discrimination . . . .â€].)
Defense counsel did not, however, do a comparative analysis in the trial
court of the prosecutor’s two other reasons for excluding C.B.: her profession as a nurse, and her
purportedly poor memory of her prior jury service. As California case law stood in 2005 when
we heard appellant’s second appeal, we held we could not engage for the first
time on appeal in comparative analysis of the prosecutor’s two additional
reasons for excluding C.B. We noted that
federal case law seemed to be moving in the direction of allowing, and perhaps
even compelling, comparative analysis for the first time on appeal, but we
concluded that our state Supreme Court’s decisions prohibiting
comparative analysis for the first time on appeal bound us.
and her purportedly poor memory were on their face race-neutral reasons for the
prosecutor to exercise a peremptory challenge of her, we affirmed the trial
court’s ruling as to her exclusion, too.
Appellant
filed a petition of habeas corpus in the United States District Court for the
Central District of California. In March
2013, the district court granted appellant conditional relief. The district court found that we (and our
Supreme Court in denying appellant’s petition for review of our 2005 decision)
had misapplied federal constitutional law by not engaging in a comparative
analysis for the first time on appeal of all
three of the prosecutor’s reasons for excluding C.B (bright clothing,
status as a nurse, poor memory). (See,
e.g., Love v. Scribner (2008 9th
Cir.) 278 Fed.Appx. 714, 717 [“the [California] state court of appeal
refused to conduct the required [comparative] analysis, citing then-existing California law . . . . This refusal ‘was contrary to, or involved an
unreasonable application of, clearly established Federal law’ â€];
119 Cal.App.4th 1070, 1077 [may cite unpublished decisions from other
jurisdictions].) The district court
ordered the state of California to release appellant from
state prison within 90 days of the district court’s March
1, 2013 judgment unless we heard within those 90 days appellant’s comparative
analysis challenge to the prosecutor’s three reasons for excluding C.B. from
the jury.
In
the meantime, in 2008 our Supreme Court in People
v. Lenix (2008) 44 Cal.4th 602, 622 (Lenix), held that comparative analysis can be performed for the
first time on appeal if the record on appeal lends itself to such an
analysis. (People v. McKinzie (2012) 54 Cal.4th 1302, 1321 (
may be considered for first time on appeal if relied upon by the defendant and
the record is adequate to permit the urged comparisons].) Accordingly, on the Attorney General’s motion
and consistent with the district court’s order, we recalled our remittitur and
ordered supplemental briefing by the parties, and, at the parties’ election,
set the matter for oral argument. Based
on a comparative analysis of the prosecutor’s reasons for excluding C.B., we
now reverse appellant’s convictions and remand to the trial court for further
proceedings.
The
prosecutor gave three reasons for removing C.B., an African-American woman,
from the jury: She was a retired nurse,
a profession he deemed “sympatheticâ€; she had poor recall of her prior jury
service; and she wore bright clothing, a sign of being a sympathetic
person. In explaining his reasons to the
court, the prosecutor said:
“I think she
was the retired nurse, she had three prior jury services. And I think she said the last one she thought
was four years ago for theft. Now, I
found her to be an old — she’s an older woman.
She’s been retired for 12 years as a nurse. In my opinion a nurse is a sympathetic
person, sympathetic profession. And I
also found that she had poor memory. She
couldn’t remember the cases that she sat on when the court made inquiry about
her priors. And I made inquiry about her
prior jury service, and she couldn’t remember the facts of the case, the
charges or anything like that. She did
remember that all three cases resulted in a verdict. [¶] So
I had questions about her memory, and her ability to properly serve as a
juror. [¶] In addition to that, she was wearing — she
both — she wore bright colored clothing on the first day of service and today. On both days, she wore bright colored
cloth[es]. I consider people who wear
bright colored clothing as warm emotional people. Again, I’m concerned about people who would
be sympathetic one way or the other and not decide this case based upon the
facts of this case. And that’s the basis
for my excusing her. [¶] Poor memory, the fact that she’s an older
woman, she couldn’t remember her prior jury service, and then she appears to be
a warm, emotional, sympathetic person.â€
When ruling on a defendant’s
trial court must decide not only whether the prosecutor’s stated reasons are
race neutral, but whether those stated reasons actually motivated the
peremptory challenge, instead of masking purposeful discrimination. (Batson,
supra, 476 U.S. at p. 98; Wheeler,
pp. 281-282.) In deciding if the
defendant has carried his burden of persuasion, a court must undertake a
sensitive inquiry into the available circumstantial and direct evidence of
intent. (Wheeler, at p. 282; Batson,
supra, at p. 93.) That evidence
includes a comparative analysis of the jurors struck by the prosecutor with the
characteristics of other prospective jurors whom the prosecutor did not
strike. (Miller-El, supra, 545 U.S.
at p. 239; Lenix, supra,
44 Cal.4th at p. 622.) If a
prosecutor’s reasons for striking a black panelist apply to an otherwise
similar non-black panelist who is permitted to serve, that is evidence tending
to prove purposeful discrimination. We
consider each reason the prosecutor gave.
Bright
Clothing
The prosecutor
challenged C.B. because she wore bright clothing and had been a nurse, although
the prosecutor did not challenge three other jurors – one of whom was also a
nurse – who also wore bright clothing.
Our Supreme Court tells us that an advocate has an incentive to put in
the record all of the advocate’s race-neutral reasons for peremptorily
challenging a venire member. “Both court
and counsel bear responsibility for creating a record that allows for
meaningful review. [Citation.] Review is deferential to the factual findings
of the trial court, but that review remains a meaningful one. ‘Deference does not by definition preclude
relief. [Citation.] When reasons are given for the exercise of
challenges, an advocate must ‘stand or fall on the plausibility of the reasons
he gives.’ †(People v. Lenix (2008) 44 Cal.4th 602, 621.) Defense counsel cited the court to the
prosecutor’s seemingly inconsistent treatment of brightly clothed jurors. The prosecutor therefore had the opportunity,
and incentive, to rehabilitate the three brightly-clad unchallenged jurors with
race-neutral reasons that explained their continued presence on the jury after
the prosecutor removed C.B.
Nevertheless, the prosecutor did not try to explain why the three
remaining jurors were acceptable despite wearing bright clothing.
The
Attorney General on appeal attempts what the prosecutor did not try by
suggesting that two of those jurors --
numbers 7558 and 538 -- may have held favorable views of law enforcement or
robbery victims that overcame their bright clothing. Brightly clad juror 7558 had been robbed
twice at gunpoint while working as a bank teller. And brightly clad Juror 538 had relatives and
friends in law enforcement. Respondent’s
effort is proper because a reviewing court may consider on appeal reasons in
the record supporting a prosecutor’s decision not to challenge a particular
juror even if the prosecutor did not cite those reasons. (People
v. Jones (2011) 51 Cal.4th 346, 365-366 (Jones).) Analogous
circumstances arose in Jones, supra,
at page 365. There, the venire
panel in a death penalty case had three bus drivers, a profession the
prosecutor disfavored. The prosecutor
excused the African American bus driver but kept the two white bus drivers. No Wheeler/Batson
violation occurred, however, because the white drivers were “strongly in favorâ€
of the death penalty, whereas the black driver was only “moderately in favor†–
a difference in attitude that plausibly overcame being a bus driver.
Respondent’s
attempt to rehabilitate the brightly clad jurors does not, however, include the
juror of greatest interest here – the nurse identified as juror 2042. And the reason respondent cannot suggest any
rehabilitative factors is the prosecutor did not ask that juror a
characteristics – being a nurse and wearing bright clothing – which the
prosecutor had stated were his reasons for excusing C.B. (See People
v. Lomax (2010) 49 Cal.4th 530, 573 (Lomax) [“A
failure to engage in meaningful voir dire on a subject of purported concern
can, in some circumstances, be circumstantial evidence suggesting the stated
concern is pretextual.â€]; see also Miller-El,
supra, 545 U.S. at p. 244.)
Only the court asked juror 2042 questions, and her answers offer
little, if any basis on which to distinguish her from C.B. in a way making her
favorable to the prosecution. Juror
2042’s examination by the court began with her answering the court’s standard
demographic questions posted on a bulletin board and ended with several
follow-up questions by the court. Her
entire voir dire was the following: “I
live in Lakewood. I’m married. And I have one child who is 14 years
old. I’m a registered nurse. My husband is a registered nurse too. My hobby is bowling and tennis. [¶]
[Court]: Have you ever been on a
jury before? [¶] [A.]:
No, this is my first time.
[¶] [Court]. Okay.
And what facility do you work at, and where does your husband work as
well? [¶] [A.]:
I work at Long Beach Memorial hospital.
My husband works through the registry.
He works through Premier Nursing registry. [¶]
[Court]: Do you know juror
No. 2 [C.B.]? [¶] [A.]
No. [¶] [Court]:
Okay. Thank you.†That’s it.
That’s all we know about Juror 2042 – except that she was not African
American. But despite no questions by
the prosecutor that might have elicited information that could have allayed his
concerns about 2042’s nursing profession and bright clothing, the prosecutor
accepted her – and rejected C.B., a brightly clad African-American nurse.
Nursing
Profession
The
prosecutor’s second reason for excusing C.B was her career as a nurse, a
profession he considered likely to make her unduly sympathetic to the point
where he feared she might not be able to weigh the facts. He told the court, “In my opinion a nurse is
a sympathetic person, sympathetic profession.â€
Based on her profession, he explained:
“I’m concerned about people who would be sympathetic one way
or the other and not decide this case based upon the facts of this case. And that’s the basis for my excusing
her.†But, as we have noted, one of the
brightly-clad non-African-American jurors was also a registered nurse. Indeed, that nurse had worked at the same
hospital where C.B. had worked before retiring.
The prosecutor did not ask either C.B. or the other nurse whether their
profession made them sympathetic to the point where, as the prosecutor stated,
they could “not decide this case based upon the facts of this case.†Our Supreme Court has noted that a “failure to engage in
meaningful voir dire on a subject of purported concern can, in some
circumstances, be circumstantial evidence
suggesting the stated concern is pretextual.â€
(Lomax, supra,
49 Cal.4th at p. 573.)
Respondent contends the
other nurse is not truly comparable to C.B. despite sharing the same profession
and taste in clothing because the other nurse did not manifest the same
difficulty that C.B. purportedly displayed in recalling prior jury service – a
comparison that misses the mark because the other nurse, having had no prior
jury experience, had no service to forget.
Moreover, respondent’s attempt to draw a distinction additionally fails
because it rests, as we explain in the next part, on the prosecutor’s
misapprehension of C.B.’s purportedly poor recall of her jury experience. Hence, the unchallenged non-African-American
nurse was comparable to C.B. for those characteristics ‑‑ except
for her race ‑‑where the record supported the prosecutor: they both were nurses who wore bright clothing.
C.
Poor
Memory
We do not actually engage in a
comparative analysis of the prosecutor’s stated reason that C.B. had a poor
memory of her prior jury experience for the simple reason that the record does
not reflect that C.B.’s memory was deficient at all. Thus it could not have been a reason for
excluding her.
The prosecutor told the court: “And I also found
that she had poor memory. She couldn’t
remember the cases that she sat on when the court made inquiry about her
priors. And I made inquiry about her
prior jury service, and she couldn’t remember the facts of the case, the
charges or anything like that. She did
remember that all three cases resulted in a verdict. [¶] So
I had questions about her memory, and her ability to properly serve as a juror.â€
The record does not support the
prosecutor. Contrary to the prosecutor’s
assertion, C.B. answered the court’s questions with no lapse of memory. The exchange between the court and C.B. was
as follows:
“[Q.]: How, many times have you served on a jury
that deliberated? [¶] [A.]:
Three times. [¶] [Q.]:
Okay. And without telling us what
the verdict was, just tell us was a verdict reached, or did the jury hang, or
were you unable to reach a verdict?
[¶] [A.]: There was a verdict reached. [¶]
[Q.]: Were you the foreperson? [¶]
[A.]: No.â€
And contrary again to the
prosecutor’s assertion, C.B. did not fail “to remember the facts of the case,
the charges or anything like that†when he asked about her jury service. The prosecutor
asked her about the charges for two of the three trials on which she had
previously sat, and she recalled both were thefts. Her memory was less than precise only as to
how long ago she had served on the first trial, which she believed was “about
four years.†The exchange between
the prosecutor and C.B. was as follows:
“[Q.]: Now the prior service that you had ‑‑
when was the last time that you served on the jury? [¶]
[A.]: Last year. [¶]
[Q.]: Last year. What type of case was it? [¶]
[A.]: Theft. [¶]
[Q.]: And can you remember the
previous time you served? [¶] [A.]:
Yes, I think. I think that was ‑‑
about four years ago. [¶] [Q.]:
All right. What type of case was
it? [¶]
[A.]: Same thing, theft. [¶]
[Q.]: Theft. And did ‑‑ I think you said that
each one of those juries that you served on reached a verdict? [¶]
[A.]: Yes.â€
It may have been that the
prosecutor had confused C.B. with one or more other jurors who appeared to have
poor memories.
name="_ftnref3" title="">[3] While we do not engage in comparative analysis
with the other jurors because the record is unclear as to their races,
obviously C.B.’s asserted poor memory cannot be the basis for the proper
exercise of a peremptory challenge because that poor memory did not exist. On the contrary, and in light of our
discussion of the nurse and bright clothing factors, the mischaracterization of
her memory suggests pretext. (
584 F.3d 1174, 1190, 1192 [prosecutor’s mischaracterization of venire
answers can be evidence of discriminatory pretext]; Cook v. Lamarque (9th Cir. 2010) 593 F.3d 810, 818
[mischaracterization of juror’s answer “is evidence of discriminatory
pretextâ€]; but see People v. Williams (2013) 56 Cal.4th 630
[156 Cal.Rptr.3d 214, 243] [genuine mistake about a venire person’s
answers or traits is a race-neutral reason]; Jones, supra, 51 Cal.4th at p. 366.)
D.
Summary
Respondent
correctly notes that comparative analysis may provide
exercise of peremptory challenges, but is not dispositive. A court must consider the “totality of the
record†in assessing whether a party’s peremptory challenge rested upon an
unlawful group bias. (
pp. 1321-1322 [“ ‘[C]omparative
juror analysis is but one form of circumstantial evidence that is relevant, but
not necessarily dispositive, on the issue of intentional
discrimination.’ â€].) Moreover, as
respondent correctly notes, “Defendants who wait until appeal to argue
comparative juror analysis must be mindful that such evidence will be
considered in view of the deference accorded the trial court’s ultimate finding
of no discriminatory intent.†(
p. 624; see also Jones, supra,
51 Cal.4th at p. 361.)
We
presume a prosecutor exercises peremptory challenges in a constitutional
manner. (People v. Taylor (2009) 47 Cal.4th 850, 886.) Moreover, we must consider reasons in the
record that might support a prosecutor’s peremptory challenge, for there may
exist offsetting reasons that allay a prosecutor’s concerns about a particular
juror. (People v. Riccardi (2012) 54 Cal.4th 758, 788.) “A party concerned about one factor need not challenge every
prospective juror to whom that concern applies in order to legitimately
challenge any of them.†(
p. 365; but see Green v. LaMarque
(2008) 532 F.3d 1028, 1030 [“[T]he prosecutor is responsible for articulating his own
reasons for the challenges exercised.
The Supreme Court has stressed that courts must be careful not to
substitute their own speculation as to reasons why a juror might have been
struck for the prosecutor’s stated reasons.â€].)
As evidence of the prosecutor’s lack of discriminatory intent
here, respondent notes that three, and perhaps four, African-Americans were in
the jury box and went on to serve as jurors when appellant made his
v. Evans (C.D.Cal. 2012) 2012 WL 7637663, *5, fn. 11.) “The prosecutor’s acceptance of the panel containing a Black
juror strongly suggests that race was not a motive in his challenge . . .
.†(Lenix, supra, 44 Cal.4th at p. 629.) But notwithstanding the prosecutor’s
acceptance of three or four African-American jurors, a constitutional violation
occurs if even one juror is removed because of race regardless of how many
other jurors of the same race remain on the jury. (People
v. Silva (2001) 25 Cal.4th 345, 386.)
Because we find the prosecutor failed to offer plausible race-neutral
reasons that either withstood comparative analysis against non-African-American
jurors whom the prosecutor accepted (bright clothing and nursing
profession) or support in the record (poor memory), the trial court erred in
denying appellant’s Wheeler
motion. An erroneous denial of a
error not subject to harmless error analysis.
(People v. Turner (1986)
42 Cal.3d 711, 728; People v. Allen
(2004) 115 Cal.App.4th 542, 553.)
Automatic reversal is required. (
DISPOSITION
The
judgment is reversed and the matter is remanded to the trial court for further
proceedings.
RUBIN,
J.
WE CONCUR:
BIGELOW,
P. J.
FLIER,
J.
name="_ftn1" title="">[1] A
three-step
process exists for evaluating a defendant’s objection to a peremptory
challenge. First, the defendant must
make a prima facie showing that a challenge was based on an impermissible
basis, such as race. (
79, 96 (Batson).) Second, if the trial court finds the
defendant has made a prima facie case of discrimination, the burden then shifts
to the prosecution to offer a race-neutral reason for the challenge that
relates to the case. (Id. at
pp. 97-98.) Third, if the
prosecutor offers a race-neutral explanation, the trial court must decide
whether the defendant has proved the prosecutor’s motive for the strike was
purposeful racial discrimination. (Id.
at p. 98.)
name="_ftn2" title="">[2] We
wrote in our 2005 decision: “During the
pendency of this appeal, the United States Supreme Court decided
____ (125 S.Ct. 2317) (Miller-El). In that decision, the Court’s majority
engaged in comparative analysis despite the defendant’s failure to have pursued
that analysis in the trial court. (
also dissent at pp. 2347-2348.) We
invited supplemental briefing on whether Miller-El
compels (or permits) us to do a comparative analysis for the first time on
appeal. After reviewing the supplemental
briefs, we find Miller-El does not
answer our question. (Accord,
240, 270 [assumed, but refused to decide, Miller-El
permits comparative analysis for the first time on appeal].) In the absence of a direct statement by the
United States Supreme Court, we must observe our Supreme Court’s prohibition of
performing comparative analysis for the first time on appeal. (People
v. Heard [(2003) 31 Cal.4th 946, 971]; People v. Johnson [(2003) 30 Cal.4th
1302, 1318]; see
57 Cal.2d 450, 455.)†(
