P. v.
Filed 7/18/13 P. v. Martinez CA1/3
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST
APPELLATE DISTRICT
DIVISION
THREE
THE PEOPLE,
Plaintiff and Respondent,
v.
ENRIQUE
TORRES MARTINEZ,
Defendant and Appellant.
A134714
(San Mateo County
Super. Ct.
No. SC072999A)
This
is an appeal from judgment after defendant Enrique Torres Martinez was
convicted of two felony drunk driving offenses, one misdemeanor offense of
failing to stop at the scene of an accident, and one misdemeanor offense of
driving with a suspended license, with enhancements for certain prior felony
violations. The trial court sentenced
defendant to a total prison term of six years.
Defendant challenges the judgment on the sole ground that the prosecutor
violated his right to a fair and impartial
jury by using peremptory challenges to strike four minority women from the
jury panel, leaving the jury without Hispanic representation. We affirm.
FACTUAL
AND PROCEDURAL BACKGROUND
On
May 9, 2011, an amended
criminal information was filed charging defendant with: (1) felony driving under the influence
of alcohol (DUI) within ten years of two prior felony DUI violations (Veh.
Code, §§ 23152, subd. (a), 23550.5, subd. (a)(1)) (count one);
(2) felony driving with a blood-alcohol level of 0.08 percent or greater
within ten years of two prior felony DUI violations (§§ 23152, subd. (b),
23550.5, subd. (a)(1)) (count two); (3) misdemeanor failing to stop at the
scene of an accident (§ 20002, subd. (a)) (count three); and
(4) misdemeanor driving with a driver’s license suspended for a DUI
conviction (§ 14601.2, subd. (a)) (count four). The amended information alleged with respect
to all counts that defendant had sustained four prior felony convictions for
being under the influence of a controlled substance (Health and Safety Code, § 11350),
and three prior felony DUI convictions (§ 23152).
The
charges and allegations set forth above stemmed from events occurring on the
evening of January 21, 2011,
in Daly City. Because the only issue raised on appeal
relates to the circumstances of defendant’s trial rather than of his underlying
offenses, we describe the events of this evening only briefly to provide the
relevant background to the trial.
Defendant, driving a blue-green Honda Civic, pulled in front of Enrique
Tobar on San Pedro Avenue,
cutting him off. Tobar reacted by repeatedly
blowing his horn. After about two
blocks, with Tobar’s vehicle still following behind the Civic at a distance of
about 10 to 15 feet, defendant slammed on his brakes. Tobar, without time to brake, hit the Civic
from behind, damaging his front-bumper.
Tobar pursued defendant’s vehicle in an attempt to get the Civic’s
license plate number. Defendant stopped,
exited his vehicle, and walked to Tobar’s vehicle. Defendant complained Tobar had hit the
Civic. Tobar responded that he would
call the police, at which point defendant returned swiftly to his vehicle and
drove away. Tobar then called 911 from
his cell phone. According to dispatch
records, this call was placed at 9:45 p.m.
Tobar
was subsequently able to provide the police with the Civic’s license plate
information, which was then used to trace the vehicle to Maria Gutierrez,
defendant’s girlfriend. Police officers
went to Gutierrez’s residence around 10:00 p.m.,
where they found the slightly-damaged Civic and observed through a window defendant
asleep on the living room couch with a near-full beer on a nearby table. Defendant admitted he had been driving the
Civic earlier in the evening, and that he had consumed three beers before
leaving work at about 6:00 to 6:30 p.m. He denied drinking more alcohol following the
collision with Tobar’s vehicle.
Nonetheless, defendant failed field sobriety tests and a preliminary
alcohol screening sample indicated his blood-alcohol level was 0.166 percent at
10:41 p.m.
driving under the influence of alcohol and admonished him to elect to take a
mandatory blood or breath alcohol screening test. Defendant refused, and the officer ultimately
decided he would take a blood test. A
phlebotomist was summoned, who drew blood from defendant at 11:40 p.m., revealing a blood-alcohol level of
0.19 percent.
title="">[3]
At
the time of defendant’s arrest, his driver’s license was already suspended for
a previous drunk driving violation.
At
trial, Gutierrez testified that, on the night in question, defendant arrived
home between 9:00 and 9:30 p.m., after which she saw him drinking a
beer in the living room with a box of beer nearby. She spent most of the night folding clothes
in the bedroom so did not have much occasion to observe defendant drinking;
however, the next day she found an empty shot glass smelling of tequila and
several empty beer bottles.
name="_ftnref4" title="">[4]
On
May 16, 2011, a jury found defendant guilty of the misdemeanor offenses of
failing to stop at the scene of the accident and driving with a suspended
license, but could not reach a verdict with respect to the two felony drunk
driving offenses, resulting in a mistrial.
On
October 5, 2011, a
second jury convicted defendant of both felony drunk driving offenses. The trial court then found true in bifurcated
proceedings that defendant committed counts one and two within ten years of the
alleged prior DUI convictions.
On
December 22, 2011, following a hearing, the trial court denied defendant’s
request for probation and sentenced him to the upper three-year term as to
count one; stayed imposition of a sentence as to count two; ordered him to
serve 90 days in county jail as to counts three and four, with 90 days of
sentenced him to consecutive one-year terms as to each of the three prior
felony conviction enhancements. An
aggregate sentence of six years in prison was thus ordered. This timely appeal followed.
DISCUSSION
Defendant
raises a single issue for our review. He
contends the prosecutor violated his constitutional rights to equal protection
and to a trial by jury by using the People’s peremptory challenges to exclude
from the jury a cognizable group of minority women (to wit, one African-American
and three apparently Hispanic women).
The result, defendant contends, was a jury lacking Hispanic
representation.
title="">[5]
The
following well-established legal principles guide our review. “[U]se 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†and “the defendant’s right to equal protection
under the Fourteenth Amendment to the United States Constitution.â€
491, 541, citing Batson v. Kentucky
(1986) 476 U.S. 79, 88 [Batson];
People v. Wheeler (1978) 22 Cal.3d 258, 276-277 [“remov[ing] prospective
jurors on the sole ground of group bias violates the right to trial by a jury
drawn from a representative cross-section of the community under article I,
section 16, of the California Constitutionâ€] [Wheeler].)
When, as here, a defendant
challenges the prosecution’s use of peremptory strikes by way of a so-called
comply with the following procedures.
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.’ [Citation.]†(
Second, if the defendant succeeds in making this 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.†’ (
125 S.Ct. 2410], fn. omitted.]†(
discrimination is a question of fact.†(
v. Lewis (2008) 43 Cal.4th
415, 469.) As such, on appeal, we
must uphold the trial court’s denial of a Wheeler/Batson
motion “if the ruling is
fairly supported by substantial evidence in the record, giving deference to
the trial court which had the opportunity to observe . . . the juror.â€
(People v. Holt (1997) 15 Cal.4th 619, 651 (italics added);
see also People v. Williams, supra,
56 Cal.4th at p. 649.) “ ‘We presume that a prosecutor uses peremptory
challenges in a constitutional manner and give great deference to the trial
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. Williams, supra, 56 Cal.4th at p. 650.)
Here,
the trial court denied defendant’s
for lack of a prima facie showing that the totality of the relevant
facts gave rise to an inference of discriminatory purpose. The facts underlying the trial court’s ruling
are as follows.
The
prosecution used its first four peremptory challenges to strike the following
prospective jurors:
(1) Ms. G., who defense counsel described as Hispanic, but the
prosecutor described as Filipino; (2) Ms. B.H., an African-American;
(3) Ms. L.E., who appeared Hispanic; and (4) Ms. H., who
defense counsel described as Hispanic, but the trial court described as
non-Hispanic and without any noticeable accent.
After the prosecutor’s fourth challenge, defense counsel brought a
the prosecution had discriminated against a cognizable group during the jury
selection process with the result that a representative sample of Hispanic
persons had been eliminated. The trial
court thereafter permitted the prosecution to state for the record its reasons
for striking the above-identified persons.
With
respect to Ms. G., the prosecutor noted two reasons for her excusal. First, Ms. G. had her own pending court
case that, like this case, related to alcohol.
Second, Ms. G. had noted in voir dire that, as a general matter,
she found the police disappointing and frustrating.
With
respect to Ms. B.H., the prosecutor described her as an “over-thinker,â€
and expressed concern that, if seated on the jury, she would get “caught up in
the minutia of the case,†potentially leading to another mistrial.
The
prosecutor chose to strike Ms. L.E., in turn, due to her youthful and
untraditional appearance, which included blue nail polish and very torn jeans,
“along with the manner in which she responded to some of the questions posed to
her.†According to the prosecutor, she
preferred a jury composed of individuals more conservative than Ms. L.E.
And,
finally, with respect to Ms. H., the prosecutor exercised the peremptory
challenge due to the prospective juror’s “sullen†and “curt†responses and
demeanor.
The
trial court expressly accepted each of these explanations as indicative of the
prosecutor’s non-discriminatory motivation for excusing the identified
prospective jurors. Subsequently, the
trial court clarified to defense counsel that it did not find, as an initial
matter, that a prima facie showing of discrimination had been presented. A jury composed of 11 Caucasians and one
Filipino was thereafter impaneled.
Based
upon the above record, we conclude substantial evidence supports the trial
court’s denial of defendant’s Wheeler/Batson
motion, even if we were to assume for the sake of argument that defendant made
a prima facie showing. (
341-342.) First, the prosecutor’s
explanation for striking Ms. G. – that she, like defendant, had an
alcohol-related case pending – is undoubtedly valid. It is a legitimate and non-discriminatory
reason why the prosecution could in good faith question whether Ms. G.
would be an impartial juror and, as such, is wholly proper. (People v. Williams, supra, 56 Cal.4th at p. 649.) The same is true for the prosecutor’s
striking of Ms. L.E. due to her youthful and untraditional demeanor and
appearance. It is a common and
appropriate trial strategy for counsel to strive to have seated a conservative
jury to alleviate concern that said jury would be too sympathetic towards the
defendant or too mistrusting of law enforcement to render a fair verdict. (People v. Lenix (2008) 44 Cal.4th 602, 613
[prosecutor may excuse a prospective juror “based
upon facial expressions, gestures, hunches, and even for arbitrary or
idiosyncratic reasons,†so long as such reasons are nondiscriminatory].)
Next,
with respect to Ms. B.H., we agree with the trial court that striking this
individual out of concern that she might “over-think†the case was a proper
peremptory challenge. As our high court
has explained: “ ‘All that matters is that the prosecutor’s 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.’ †(People v. Reynoso (2003) 31 Cal.4th 903, 924; see also
v. Guerra (2006) 37 Cal.4th
1067, 1101.) And, finally, we
reach the same conclusion with respect to the prosecutor’s explanation that
Ms. H. was excused based upon her “sullen†and “curt†responses and
demeanor. Whether or not reasonable, the
prosecutor’s rationale is nondiscriminatory.
As such, the trial court, which, unlike this court had the opportunity
to observe first-hand Ms. H’s statements and expressions, was entitled to
accept it. We decline to second-guess
the trial court’s judgment on this record.
(
Cal.4th at p. 651 [reviewing court must give “giv[e] deference to the
trial court which had the opportunity to observe . . . the jurorâ€],
italics added.)
Thus,
because the prosecutor’s stated reasons for excusing Ms. G.,
Ms. L.E., Ms. B.H. and Ms. H are reasonably grounded, not in
purposeful discrimination, but rather in appropriate trial strategies relating
to avoiding jurors who might decide a defendant’s guilt based on sympathy,
aversion to law enforcement, inability to reach a final decision, or some other
improper ground, there is no basis to reverse the trial court’s decision. (People v. Lewis, supra, 43 Cal.4th at p. 469 [“The
credibility of a prosecutor’s stated reasons for exercising a peremptory
challenge ‘can be measured by, among other factors . . . how
reasonable, or how improbable, the explanations are; and by whether the
proffered rationale has some basis in accepted trial strategy’ â€].)
Accordingly,
because defendant has failed to provide any ground for reversing the trial
court’s denial of his Wheeler/Batson
motion, we affirm.
DISPOSITION
The
judgment is affirmed.
_________________________
Jenkins,
J.
We concur:
_________________________
Pollak, Acting P. J.
_________________________
Siggins, J.
name="_ftn1" title="">[1] Unless otherwise stated, all statutory
citations herein are to the Vehicle Code.
The officers failed four times
to get a second preliminary alcohol screening sample.
