P. v. McGriff

Filed 5/1/07 P. v. McGriff CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FIVE

Defendant Shawn Dupree McGriff was convicted by jury trial of vehicle theft (Veh. Code,  10851, subd. (a)) and possession of a stolen vehicle (Pen. Code,  496d, subd. (a)), and pled no contest to resisting a peace officer (Pen. Code,  148, subd. (a)(1)).^[1] In a bifurcated proceeding the trial court found true two prior prison term allegations (Pen. Code,  667.5, subd. (b)). Defendants sole contention on appeal is that the court erred in denying his Batson/Wheeler^[2]motion based upon the prosecutions improper use of a peremptory challenge during jury selection. We reject the contention and affirm.

Background

Since the sole issue on appeal regards jury selection, a detailed recitation of the facts of the incident is unnecessary. On August 23, 2005, defendant admitted he was driving a car whose owner had reported it stolen. Defendant claimed he had borrowed the car from a Mike Davis or Mike Jones. Defendant admitted he fled when police attempted to pull him over, because he had outstanding warrants.

Discussion

During jury selection, defendant, who is African-American, made a Batson/Wheeler motion after the prosecutor exercised a peremptory challenge against prospective Juror J. B. The court denied the motion after finding there was no prima facie case of purposeful discrimination. Defendant contends the courts finding of no prima facie case of purposeful discrimination was erroneous.

A prosecutors use of peremptory challenges to strike prospective jurors on the basis of group biasthat is, bias against members of an identifiable group distinguished on racial, religious, ethnic, or similar groundsviolates 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 also violates the defendants right to equal protection under the Fourteenth Amendment to the United States Constitution. (People v. Avila (2006) 38 Cal.4th 491, 541, quoting People v. Wheeler, supra, 22 Cal.3d at pp. 276-277; Batson v. Kentucky, supra, 476 U.S. at p. 88.)

Recently, in Johnson v. California (2005) 545 U.S. 162 the United States Supreme Court reaffirmed the three-prong Batson test to be used by trial courts when motions are made challenging peremptory strikes: 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.] (Id. at p. 168.)

The trial courts ruling on the issue of purposeful racial discrimination is reviewed for substantial evidence. (People v.Avila, supra, 38 Cal.4th at p. 541.) The prosecutor is presumed to use peremptory challenges in a constitutional manner and deference is given to the courts ability to distinguish  bona fide reasons from sham excuses. [Citation.] (Ibid.) We defer to the courts conclusions so long as it makes a  sincere and reasoned effort to evaluate the nondiscriminatory justifications offered. [Citation.] (Ibid.)

The prosecutors peremptory challenge against Juror J. B. was his first against an African-American. Juror J. B. was seated in the jury just prior to his challenge by the prosecutor. At the time of the challenge to Juror J. B., the prosecutor had already peremptorily challenged four other prospective jurors and defense counsel had challenged eight prospective jurors.

During voir dire Juror J. B. said he could be fair to both sides and there was nothing about the nature of the charges against defendant that made him feel this just isnt the case for [him]. Juror J. B. answered affirmatively when the prosecutor asked if he had been present for all the earlier voir dire questions. Thereafter, when the prosecutor stated he noted that Juror J. B. had walked in during the courts voir dire, Juror J. B. said that during jury selection he had gone to the restroom. Juror J. B. said he doubted that he missed some questions. At first he said he was gone just for a second, but then said he was gone [a]bout three minutes. Upon further questioning from the prosecutor, Juror J. B. said he went to the restroom [a]fter people started being dismissed, but said he had heard all the questions before that.

In asserting the Batson/Wheeler motion, the defense argued there was no reason for the prosecutors challenge of Juror J. B. other than that he was African-American. The court acknowledged that a peremptory challenge of a single minority juror could constitute a prima facie of purposeful discrimination. However, the court stated: I saw [Juror J. B.] coming and going. I think he was gone longer than three minutes, and out of this entire panel, my observation was he was the only juror who left, which I think is a bit unusual. The court found the prosecutors challenge of Juror J. B. was race neutral, based on Juror J. B.s choice or inability to remain while the [c]ourts voir dire or the attorneys voir dire was taking place. The court also noted that Juror J. B. was the only prospective juror who said he was not present for a portion of the general voir dire.

We conclude the record provides substantial evidence in support of the courts finding there was no prima facie case of purposeful racial discrimination. As the court found, the prosecutor could reasonably have concluded that Juror J. B.s leaving the courtroom during voir dire, then denying that he missed any voir dire and thereafter asserting he had missed several minutes of questioning, supplies a race-neutral reason for the prosecutors challenge. Nothing in the record suggests that this was a sham excuse rather than a bona fide reason for the challenge. In addition, the courts determination that a prima facie case of discrimination did not exist is supported by the fact that following its denial of defendants Batson/Wheeler motion, the next prospective juror appeared to be an African-American man who was unchallenged and ultimately served on the jury. (See People v. Trevino (1997) 55 Cal.App.4th 396, 404.) We conclude the Batson/Wheeler motion was properly denied.

Disposition

The judgment is affirmed.

SIMONS, J.

We concur.

JONES, P. J.

NEEDHAM, J.

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^[1] Defendant was acquitted of receiving stolen property (Pen. Code,  496, subd. (a)).

^[2]Batson v. Kentucky(1986) 476 U.S. 79; People v. Wheeler (1978) 22 Cal.3d 258.