PEOPLE v. JONES
Filed 1/31/11
IN THE SUPREME COURT OF CALIFORNIA
THE PEOPLE, )
)
Plaintiff and Respondent, )
) S056364
v. )
)
ALBERT JONES, )
) Riverside County
Defendant and Appellant. ) Super. Ct. No. CR 53009
__________________________________ )
A jury convicted defendant Albert Jones of the first degree murders of James H. Florville and Madalynne Florville with personal use of a deadly weapon and, as to both murders, under the special-circumstances of robbery- and burglary-murder. It also found true a multiple-murder special circumstance allegation. (Pen. Code, §§ 187, 190.2, subd. (a)(3), (17), 12022, subd. (b).)[1] The court then found true allegations that defendant had one prior serious felony conviction and three prior convictions for which he had served separate prison terms. (§§ 667, 667.5.) After a penalty trial, the jury returned a verdict of death. The court denied the automatic motion to modify the verdict (§ 190.4) and imposed that sentence. This appeal is automatic. (§ 1239, subd. (b).) We affirm the judgment.
I. The Facts
A. Guilt Phase
The evidence showed that during the early morning hours of December 13, 1993, defendant, 29 years old at the time, and A.J., a 15-year-old boy, entered the Mead Valley home of James and Madalynne Florville, an elderly married couple, hog-tied them, stabbed them to death, and stole their property.
1. Prosecution Evidence
Around noon on Monday, December 13, 1993, the bodies of 82-year-old James Florville and his 72-year-old wife, Madalynne Florville, were found in their Mead Valley home. They had been hog-tied with wire and died of multiple stab wounds. Their niece, Patricia Valenzuela, had spoken with Madalynne the evening before.
There was no sign of a forced entry into the residence. Blood was found in several places inside the residence and on an outside gate. No fingerprints were found inside the residence. The tip of what appeared to be a latex glove was found entwined in one of the knots in the wire wrapped around James’s hands, and another small piece of a latex glove was found inside the residence near a sliding glass door. Property later determined to be missing from the Florville home included money and a small toy-like safe.
Rochel Timmons, also known as Auntie Roe, lived near the Florville home. A number of teenaged youths, including Jack Purnell, Ryan McElroy, Deborah Russell, and Timmons’s daughter, Mary Holmes, spent much time at her house. Defendant did so also, although he was much older than the youths. Another teenager, A.J., also was part of the group.
Purnell, McElroy, Russell, and Holmes testified that defendant often talked to them about the group being a “clique,” with defendant their leader. Defendant said that the boys, A.J. and Purnell, were his “disciples,” and they were supposed to do what he said. He described members of the clique as “insiders,” and those not members as “outsiders.” Insiders were not supposed to talk to outsiders about the clique. Defendant threatened harm to anyone who did so. All four of these witnesses testified that defendant also sometimes talked about the clique committing robberies. He did not normally talk about such things when adults were around, although Timmons overheard some talk about committing robberies.
On Sunday, December 12, 1993, the day before the murders, the group, including defendant, gathered at Timmons’s house to go to church. At some point, defendant talked to A.J. and Purnell in a back room about a robbery he said the three of them were to commit. Russell, McElroy, and Holmes overheard some of this conversation. Russell testified she heard defendant “describing a residence and doors and fences, and talking about what they were supposed to get and . . . who would go first and second and third.” They were supposed to get “[s]ome money that was supposed to be in safes.” A.J. was to go first followed by Purnell. When they were leaving, A.J. would go first, then Purnell. Defendant “would leave last to make sure everybody else got . . . away okay.” Holmes testified that defendant said “he was going to go up to the door and tell them that his mother had a heart attack and that he needed to call the paramedics.” Purnell was supposed to tie them up and put them in a closet. A.J. was “to go around the back and come through a window.” Defendant also said they “were going to get some money,” and A.J. “was going to look for the stuff.”
Later that day, defendant drove a group that included A.J., Purnell, Russell, and Holmes to a store to buy some nylons. On the way back to Timmons’s house, defendant slowed down while driving by the Florville home. He talked to A.J. and Purnell about robbing that home. Russell testified that defendant “pointed out the sliding glass door and the fences, and told them to look at their surroundings.” He said they could hop the fences. Purnell testified that when they passed the home, defendant “point[ed] out the escape route and how we was going to go and stuff.” Holmes testified that defendant told A.J. to look at the premises and everything around him.
Purnell also testified that later that day, back at Timmons’s house, defendant talked more about the robbery that he, Purnell, and A.J. were to commit. Defendant said “that the old White people in the corner might have money and guns and stuff,” and “they might have a safe.” Defendant said that “he was going to go up to the door,” and Purnell “was supposed to follow him and [A.J.] was supposed to follow” Purnell. Defendant said that once inside, Purnell was “supposed to tie the people up.” They were “to look for some money and the safe and some guns,” and “stab the people or something” if they saw “one of us.” Defendant mentioned that they were to have gloves and rope — the gloves so as to leave no fingerprints, and the rope so they “could tie the people up.” Ultimately, Purnell went home and did not participate in the intended robbery.
Another youth in the neighborhood, Dorell Arroyo, 14 years old at the time of the murders, was an eyewitness to some of these events. He lived in the area and knew defendant and others in the neighborhood, although he was not considered a member of defendant’s clique. Arroyo spent the night of the murders in a trailer near the Florville home. Sometime early in the morning of December 13, 1993 — Arroyo did not have a watch but thought it was around 5:00 to 6:00 a.m. — he looked out the trailer window and observed defendant’s car. He had known defendant for about two years and had seen defendant’s car many times.
Arroyo stepped outside to get a drink of water. He observed defendant’s car stop near the Florville home. He saw defendant and A.J., whom he had known all his life, get out of the car. A.J. jumped over the gate to the Florville property and walked out of sight. Defendant walked to the front of the gate, and then went inside the gate towards the front of the Florville home and out of Arroyo’s view. Then Arroyo saw the sliding glass door of the Florville home move. A short time later, Arroyo observed defendant come back out the gate and walk towards his car, scratching his hands as he did so. He also saw A.J. throw a square object over the gate, then go over the gate himself and put the object into the car. Defendant entered the driver’s door and A.J. the passenger door of the car, and Arroyo watched as the car drove to Timmons’s house. Arroyo estimated to the police that these events took about 15 to 30 minutes to occur.
After observing these events, Arroyo walked to Dakota Whitney’s nearby house and sat on her couch. Whitney estimated the time of his arrival to be around 6:00 a.m., perhaps a bit earlier or later. Whitney testified that Arroyo seemed scared. Arroyo testified he tried to tell Whitney what he had seen, but she said “she didn’t want to hear it.” A day or so after these events, Arroyo told his mother what he had seen. His mother dialed 911, and the police came. Arroyo told them what he had seen. He had not done so until then. The police investigator who spoke with Arroyo testified that Arroyo was terrified about talking to him; Arroyo said that defendant would kill him if he found out that he was speaking with the police. Arroyo told the police that he had seen A.J. throw a square object over the fence before the police became aware that a small square safe was missing from the Florville home.
Considerable evidence was presented regarding the lighting conditions at the time Arroyo said he observed these events. There were no streetlights in the area, so it was dark, but it was possible to see in the area at night. The sun would not have been up yet at that time, but the evidence indicated it was beginning to get light. Arroyo testified that a motion detector light next door, which a police investigator described as bright, was turned on. He said the sun was not yet out, but he could see. The lighting was like when he got up for school; it was “misty.” Timmons testified that a porch light was on that morning at her home. The distance from where Arroyo stood when he observed these events to where he said defendant’s car was parked was 166 feet eight inches, and to the Florville’s gate was 127 feet. It was an additional 39 feet eight inches, from the gate to the front of the residence.
Mary Holmes testified that the morning of the murders, while on her way to a bus stop to go to school, she observed a bloody latex glove in Timmons’s front yard. She “panicked” because she was afraid of defendant and took the glove into the Timmons house, where she flushed it down the toilet. At trial, Holmes could not remember what time she found the glove. At various times, she had said it was around 6:05 a.m. and around 6:20 a.m. Investigators later recovered a latex glove from the top of the septic tank on Timmons’s property.
Judy Johnson, defendant’s girlfriend and A.J.’s aunt, testified that the morning of the murders, defendant drove her to her place of employment. Defendant stayed with her a few minutes but left before she clocked in at 5:23 a.m. A.J. was sleeping on the couch in their home when they left. When she returned home that day, defendant had done the laundry, including washing his and A.J.’s clothes. A police investigator testified that it took about 16 minutes to drive the 10 miles from Judy Johnson’s place of employment to defendant’s home and about11 minutes to drive the 7.9 miles from defendant’s home to the murder scene.
Deborah Russell testified that the day of the murders, she received a telephone call from defendant. He said he had heard that the people in the residence had been killed — “that they had been tied up and thrown in the closet and shot.” He told her to be careful because “next it could be me.”
Later on the day of the murders, Arroyo and others, including defendant, gathered at Timmons’s house. Timmons testified that at the time, Arroyo “stuck” to her “like a fly,” which was unusual. Russell and Holmes testified that Holmes told defendant that she had found the glove and flushed it down the toilet. Defendant asked A.J. what he had done with his gloves. A.J. responded that he had removed them and thrown them in the back of the car. Defendant also told Holmes, “Good job,” or, as Russell described it at trial, told Holmes she “had done the right thing by flushing them down the toilet.” Ryan McElroy also heard defendant and A.J. say in each other’s presence that “they lost a glove.” McElroy and Arroyo also testified that defendant threatened Arroyo, saying, as McElroy put it, that Arroyo had to “tie up people or do whatever [A.J.] say to do or he will kill him or do something bad to his loved ones.”
On the Tuesday after the murders, defendant and A.J. spoke further with some of the youths at a funeral. Purnell testified that in defendant’s presence A.J. told Purnell that “they did the lick,” by which he meant the robbery. Defendant remained silent. Ryan McElroy testified that defendant told her that the Florvilles “should have cooperated,” and then they would not have gotten stabbed.
Rochel Timmons testified that around 4:00 a.m., the Wednesday after the murders, she received a telephone call from Judy Johnson. Defendant also got on the other end of the line and told her “that he need[ed] me to help him with his alibi.” She cut him off because she did not want to talk about it.
In addition to the latex glove found in Timmons’s septic tank, investigators found a similar latex glove by a fence inside the yard at defendant’s residence, and two similar latex gloves in a trash bag in defendant’s pickup truck. None of these gloves was missing a fingertip or thumbtip, so none could have contributed the latex glove tip found at the crime scene.
A teacher at the school that A.J. had attended testified that sometime during the November before the murders, she observed A.J. walk out of a classroom with some latex gloves. She told him to put the gloves back in the classroom, and he did.
Regarding the question of intent to steal, the prosecution presented evidence that on August 3, 1985, in Vernon, California, defendant and a cohort robbed three men of their money at gunpoint.
2. Defense Evidence
Defendant presented evidence regarding the lighting conditions in the area of the crime around the relevant time in an attempt to show that it was so dark that Arroyo could not have seen what he said he saw, evidence of other acts of misconduct and prior statements to impeach some of the prosecution witnesses, and expert testimony regarding the time of the victims’ deaths and other evidence to try to show that the crime was committed earlier than Arroyo’s testimony indicated.
3. Rebuttal
The prosecution presented expert evidence to rebut the defense expert evidence regarding the time of death.
B. Penalty Phase
1. Prosecution Evidence
The prosecution presented evidence of defendant’s other criminal activity and his criminal convictions.
On July 21, 1992, defendant and a second man committed an armed robbery of a store in Delano, in Kern County. Deborah Russell testified that on December 12, 1993 (the day before the murders of this case), defendant threatened to kill her and a friend of hers because she had gone to a store with the friend. On September 23, 1995, while in a two-person cell, defendant assaulted his cellmate with his fists, bloodying him. In 1985, defendant was convicted of three counts of robbery (related to the Vernon robbery proven at the guilt phase), of selling marijuana, and of inducing a minor to sell marijuana. In 1989, he was convicted of being a felon in possession of a firearm. In 1990, he was convicted of possession of a controlled substance.
Additionally, members of the victims’ family testified about the victims and the impact their deaths had on them.
2. Defense Evidence
Defendant presented the testimony of two Riverside County sheriff’s deputies assigned to work at the county jail, who testified that defendant had always been respectful and never aggressive towards them or any other deputies. Anthony Casas, a former associate warden at San Quentin Prison and deputy director of the Department of Corrections and Rehabilitation, reviewed defendant’s prison records and found no indication in those records that he had engaged in any aggressive or violent behavior while in prison towards either staff or inmates.
Connie Jones, defendant’s sister, testified about his youth growing up in Los Angeles and Oregon. Defendant was the seventh of nine children. She communicated with defendant after he went to prison. He had a daughter who was seven years old at the time of trial. She identified photographs of defendant’s daughter at various ages.
II. Discussion
A. Prosecutor’s Use of Peremptory Challenges
Defendant contends the prosecutor improperly challenged three African-American prospective jurors for racial reasons — two during selection of the sitting jurors and one during selection of alternate jurors. We disagree. Although the trial court found that defendant had stated a prima facie case of improper use of peremptory challenges, the record supports its ultimate conclusion that the prosecutor excused the jurors for race-neutral reasons.
1. Factual Background
The record indicates that defendant is African-American; the victims were White. During jury selection, two African-American prospective jurors were excused for hardship on stipulation of both parties. Another African-American prospective juror, M.S., was excused for cause because of her views favoring the death penalty. During voir dire questioning by defense counsel, M.S. stated she could not return a verdict of life if defendant were found guilty of the charged crimes. Under questioning from the prosecutor, she said that, although she favored the death penalty, she could consider a life without parole verdict in an appropriate case. However, on further questioning from the court, she reiterated that she could not consider a life sentence. Accordingly, defendant challenged her for cause, the prosecutor submitted the matter without argument, and the court granted defendant’s challenge.
In selecting the main jury, the prosecutor exercised 16 peremptory challenges. His ninth and 12th challenges were to African-American Prospective Jurors G.G. and N.C. The jury that was ultimately selected, before the selection of alternates, included one African-American. At this point, defendant objected to the peremptory challenges. The prosecutor said he did not have his jury notes with him and was not prepared to state his reasons for his challenges at that time. The court decided to rule on the question after the alternate jurors had been selected. While selecting six alternate jurors, the prosecutor exercised six peremptory challenges, one to an African-American prospective juror, D.L. The last five of these challenges, including D.L.’s, came after defendant had exhausted his peremptory challenges. The six alternates actually selected included one African-American.
Thereafter, out of the presence of the jury, defendant objected to the prosecutor’s excusal of the three African-American prospective jurors “under the Batson line of cases and the Wheeler line of cases.” (Batson v. Kentucky (1986) 476 U.S. 79 (Batson); People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler).) When asked to respond, the prosecutor first noted that one African-American juror whom he had rated highly as a possible juror had been excused for cause, and that two other African-American jurors he had also rated highly remained on the jury, one as an alternate. He also stated that he had been reluctant to stipulate to the hardship excusals of two other African-American prospective jurors because he would have liked to see them on the jury. He then explained his reasons for the peremptory challenges at issue.
Regarding N.C., the prosecutor primarily was concerned with the prospective juror’s answer on the juror questionnaire to the question whether he or a close friend or family member had been accused of a crime. N.C. wrote that his son had been so accused. The prosecutor stated, “I think it was attempt murder or murder.” (In fact, N.C. had stated on the questionnaire only that his son had been accused of a crime and that it went to trial. He left blank questions regarding what the crime was and what happened.) The prosecutor explained why this was a concern to him: “When defense counsel kept talking about being falsely accused, I watched him, and his responses troubled me on that. Just watching his body language and his response to that. And I took that in conjunction to [the person N.C. had said had been accused of a crime], which I believed to be his son. [¶] Finally, when the defense attorney asked him . . . if he would help [defendant], I saw a pause — a gigantic pause. I could have counted to 25, I think, before he answered that question. And when he finally answered it, I didn’t remember what the answer was, but at that point I was sure that it was something he mulled over. And he mulled over it so seriously that he could not be a juror in this case.” The court asked the prosecutor, “So your primary concern there is because a family member had been charged with a serious offense” The prosecutor responded that the “conjunction” of these factors “pushed [N.C.] over on the scale.”
Regarding G.G., the prosecutor said that one factor was that his adult children were unemployed. That was a concern, but that factor alone “wouldn’t have been a final concern, because he had some other good things going for him. [¶] There was another concern I had with him, and that was that he is in charge of buses that bus in that very area where this crime occurred. And what concerned me about that was, there may be some dispute on timing. [¶] The defense has provided me with a videotape of a route from, I think, the defendant’s place to the victim’s place, and I was real concerned about his opinions regarding those routes. [¶] Likewise, what may be an issue in the case is how sunlight is in the morning. And because my witness is going to say that this happened at that time of morning before the sun comes up. And I had concerns about this bus driver, as well as other bus drivers, in this particular business. [¶] Finally, when defense counsel talked about scapegoats, and I asked [G.G.] about a scapegoat, at first it appeared to me his response was, ‘Yes, this case could be about a scapegoat,’ even though there had been no evidence at all. That led me to think this particular juror was buying into something that the defense was trying to get across with their voir dire questions. So at that point it was when I finally made up my mind that he wouldn’t be an acceptable juror either. [¶] Before that time, I would say he was, in my opinion — despite some strong things, he did have some very strong, sound things that I did like. But that scapegoat area troubled me a lot. I had the belief that he was buying into some sort of defense theory, without hearing any evidence, just based upon the voir dire questioning.”
Regarding D.L., the prosecutor explained that he regarded her “as a close one. And . . . the People kicked a lot of jurors that . . . I believe were close. [¶] As I saw it, I had good, strong jurors further down the line, and I had to weigh them in my mind against jurors down the line. [¶] [D.L.] had some very, very positive aspects. There were a couple of things that alerted me right away. She left question No. 20 blank. Again, that is the question about ‘Do you know or have anybody in your family that’s been accused’ . . . I was real concerned about her leaving that particular question blank. [¶] She answered another question that concerned me. And again, it wasn’t a final thing. It was an additional thing. She mentioned her church was A.M.E. [stated as “African Methodist Episcopal” on the questionnaire], and I assume that it’s the A.M.E. church up in LA. I constantly see A.M.E. on television. They are constantly controversial, and I don’t particularly want anybody that’s controversial on my jury panel. [¶] Another thing that I responded to was, when she was asked about being falsely accused, she almost had a defensive, combined with an overbearing manner. And two things occurred to me: One, she was buying into some of this ‘falsely accused’ business . . . . But also, at the same time, I have many witnesses. The witnesses are black kids, and they are just kind of rough. And I had the feeling that she would look down upon those kids, and I can’t have a juror that does that. [¶] . . . And also, at the time that [D.L.] came up — I think that was in the final six-pack, I’ll call it — and I had three of my best jurors that I liked best in that same six-pack. And when I saw the defense used up all of theirs, I figured I could gain my best jurors by kicking some of these other jurors who . . . I thought were pretty good jurors. Because I was down I think, six to one, which gave me a chance to pick up some very strong jurors, in my mind, such as [two who were actually selected as alternates].”
The prosecutor summarized his thinking: “So that was the thought process with those three particular jurors. I would tell the Court that I had some sort of system. I rated the . . . the two black jurors on the panel as my highest ranking and had no intentions of ever kicking those two jurors.”
When the prosecutor finished explaining his peremptory challenges, the court invited defense counsel to respond. He declined to do so. The court then clarified that it had found that defendant had stated a prima facie case of improper use of peremptory challenges. However, it found, “now having heard from the prosecution, it appears that the reasons that these persons were excluded from the jury was for nonracial purposes and racially neutral purposes.” Accordingly, the court denied defendant’s motion.
2. Analysis
“Both the federal and state Constitutions prohibit any advocate’s use of peremptory challenges to excuse prospective jurors based on race. . . . [¶] The Batson three-step inquiry is well established. First, the trial court must determine whether the defendant has made a prima facie showing that the prosecutor exercised a peremptory challenge based on race. Second, if the showing is made, the burden shifts to the prosecutor to demonstrate that the challenges were exercised for a race-neutral reason. Third, the court determines whether the defendant has proven purposeful discrimination. The ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike.” (People v. Lenix (2008) 44 Cal.4th 602, 612-613, fn. omitted (Lenix).)
Here, the trial court found that defendant had made a prima facie showing, so the burden shifted to the prosecutor to explain his conduct. “A prosecutor asked to explain his conduct must provide a ‘ “clear and reasonably specific” explanation of his “legitimate reasons” for exercising the challenges.’ [Citation.] ‘The justification need not support a challenge for cause, and even a “trivial” reason, if genuine and neutral, will suffice.’ [Citation.] A prospective juror may be excused based upon facial expressions, gestures, hunches, and even for arbitrary or idiosyncratic reasons. [Citations.] Nevertheless, although a prosecutor may rely on any number of bases to select jurors, a legitimate reason is one that does not deny equal protection. [Citation.] Certainly a challenge based on racial prejudice would not be supported by a legitimate reason.” (Lenix, supra, 44 Cal.4th at p. 613.)
The prosecutor gave a detailed, specific, race-neutral explanation of each of the challenges in question. “At the third stage of the Wheeler/Batson inquiry, ‘the issue comes down to whether the trial court finds the prosecutor’s race-neutral explanations to be credible. Credibility can be measured by, among other factors, the prosecutor’s demeanor; by how reasonable, or how improbable, the explanations are; and by whether the proffered rationale has some basis in accepted trial strategy.’ [Citation.] In assessing credibility, the court draws upon its contemporaneous observations of the voir dire. It may also rely on the court’s own experiences as a lawyer and bench officer in the community, and even the common practices of the advocate and the office that employs him or her.” (Lenix, supra, 44 Cal.4th at p. 613, fn. omitted.)
The trial court denied defendant’s motion, implicitly finding the prosecutor’s explanation credible and expressly finding his reasons to be race neutral. “Review of a trial court’s denial of a Wheeler/Batson motion is deferential, examining only whether substantial evidence supports its conclusions. [Citation.] ‘We review a trial court’s determination regarding the sufficiency of a prosecutor’s justifications for exercising peremptory challenges “ ‘with great restraint.’ ” [Citation.] 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.] So long as the trial court makes a sincere and reasoned effort to evaluate the nondiscriminatory justifications offered, its conclusions are entitled to deference on appeal. [Citation.]’ ” (Lenix, supra, 44 Cal.4th at pp. 613-614.)
As we recognized in Lenix, the United States Supreme Court has also emphasized the deference a reviewing court must give to the trial court’s determination. “ ‘[R]ace-neutral reasons for peremptory challenges often invoke a juror’s demeanor (e.g., nervousness, inattention), making the trial court’s first-hand observations of even greater importance. In this situation, the trial court must evaluate not only whether the prosecutor’s demeanor belies a discriminatory intent, but also whether the juror’s demeanor can credibly be said to have exhibited the basis for the strike attributed to the juror by the prosecutor. We have recognized that these determinations of credibility and demeanor lie ‘ “peculiarly within a trial judge’s province,’ ” [citations], and we have stated that “in the absence of exceptional circumstances, we would defer to [the trial court].” [Citation.]’ ” (Lenix, supra, 44 Cal.4th at p. 614, quoting Snyder v. Louisiana (2008) 552 U.S. 472, 477.) The high court has also “made it clear that in considering a Batson objection, or in reviewing a ruling claimed to be Batson error, all of the circumstances that bear upon the issue of racial animosity must be consulted.” (Snyder v. Louisiana, supra, at p. 478.)
Relying largely on People v. Silva (2001) 25 Cal.4th 345, 385-386, defendant argues that we should not defer to the trial court’s ruling because, after hearing from the prosecutor, it simply denied the motion without further discussion, which, defendant contends, shows that it did not make a sincere and reasoned attempt to evaluate the prosecutor’s credibility. We disagree. As we explained in response to a similar argument in People v. Lewis (2008) 43 Cal.4th 415, 471, the “court denied the motions only after observing the relevant voir dire and listening to the prosecutor’s reasons supporting each strike and to any defense argument supporting the motions. Nothing in the record suggests that the trial court either was unaware of its duty to evaluate the credibility of the prosecutor’s reasons or that it failed to fulfill that duty.” Here, the court asked the prosecutor one question during his explanation. Additionally, it invited defense counsel to comment on the prosecutor’s explanation. Defense counsel declined to comment, thus suggesting he found the prosecutor credible. Under the circumstances, the court was not required to do more than what it did.
Additionally, and contrary to defendant’s argument, the statistics are not particularly troubling. The prosecutor did peremptorily challenge 60 percent of the African-American prospective jurors who were called into the box — three out of five – and a little less than a third of the non-African-American prospective jurors called into the box — 19 out of 62. On the other hand, the prosecutor used three of 22 peremptory challenges against African-Americans before accepting a jury, including alternates, that contained two African-Americans out of 18. Thus, he challenged African-Americans at a rate only slightly higher than their percentage on the jury. If he had exercised one fewer challenge against African-Americans, he would have challenged them at a rate lower than their percentage on the jury.
These numbers are not nearly as troubling as those in Snyder v. Louisiana, supra, 552 U.S. at page 476, where the prosecutor challenged all five prospective African-American jurors, resulting in none on the actual jury, or in Miller-El v. Dretke (2005) 545 U.S. 231, 240-241, where the prosecutor challenged nine of 10 prospective African-American jurors, resulting in only one on the actual jury. Moreover, the prosecutor told the court that he would have liked to have had on the jury the two African-American jurors who were excused for hardship, as well as M.S., who was excused for cause due to her views on the death penalty. We cannot evaluate the credibility of the prosecutor’s statement regarding the jurors excused for hardship, although the trial court could do so. Even on a cold record, however, we can evaluate the credibility of the prosecutor’s statement regarding M.S. Under questioning from defense counsel, M.S. stated she could not return a verdict of life if defendant were found guilty. The prosecutor then engaged in questioning obviously designed to do what is called “rehabilitate” the juror — that is, to elicit answers that would make her not subject to a challenge for cause. He elicited the response that she could consider a verdict of life in an appropriate case. The prosecutor’s effort to rehabilitate M.S. ultimately failed, and the court excused her for cause at defendant’s request, but the record shows that the prosecutor wanted to keep her on the jury. Thus, the prosecutor clearly wanted on the jury three of the six African-American jurors who were excused for cause or were called into the box — 50 percent — and said he wanted on the jury five of the eight who were excused for hardship or cause or were called into the box — 62.5 percent.
All of these are probative circumstances, although they are not dispositive, especially considering the small numbers involved. (People v. Cleveland (2004) 32 Cal.4th 704, 734.) In Cleveland, the question was whether a prima facie case existed, but these circumstances are also relevant to the third stage of the Wheeler/Batson inquiry. “While the fact that the jury included members of a group allegedly discriminated against is not conclusive, it is an indication of good faith in exercising peremptories, and an appropriate factor for the trial judge to consider in ruling on a Wheeler objection.” (People v. Turner (1994) 8 Cal.4th 137, 168, quoted in People v. Stanley (2006) 39 Cal.4th 913, 938, fn. 7.) The prosecutor’s acceptance of the jury containing an African-American and of the alternates containing another one, as well as his desire to have had as jurors the three who were excused for hardship or cause, together with the fact that he challenged only three African-Americans out of 22 total peremptory challenges, “strongly suggests that race was not a motive in his challenge[s].” (Lenix, supra, 44 Cal.4th at p. 629.)
But “a single race-based challenge is improper.” (People v. Cleveland, supra, 32 Cal.4th at p. 734.) Accordingly, we examine defendant’s specific factual arguments, while keeping in mind the overall picture before us. He challenges the prosecutor’s explanation as to each of the three prospective jurors in question.
Regarding G.G., defendant claims the prosecutor’s concern that G.G.’s children were unemployed was not sincere or legitimate because he did not question him about this concern. Here, there were lengthy juror questionnaires supplemented by substantial voir dire questioning of the prospective jurors by the court and the parties. Thus, this is hardly a case of perfunctory examination of prospective jurors. (People v. Bell (2007) 40 Cal.4th 582, 598-599, fn. 5.) The prosecutor questioned G.G. extensively about defense counsel’s “scapegoat” theory. It is not suspicious that the prosecutor did not further question him about all other concerns. A party is not required to examine a prospective juror about every aspect that might cause concern before it may exercise a peremptory challenge. Concern over unemployed children is race neutral, and the record gives no reason to believe this explanation was not sincere.
Defendant also challenges the prosecutor’s explanation that he was concerned that G.G. was “buying into” the defense’s scapegoat theory. He notes that G.G. said all the right things in this regard. But the record shows that, while questioning the jury panel generally about the scapegoat theory, the prosecutor noticed some reaction from G.G. that concerned him and caused him to question him further. Thus, it appears the prosecutor’s concern was based on G.G.’s body language. “Experienced trial lawyers recognize what has been borne out by common experience over the centuries. There is more to human communication than mere linguistic content. On appellate review, a voir dire answer sits on a page of transcript. In the trial court, however, advocates and trial judges watch and listen as the answer is delivered. Myriad subtle nuances may shape it, including attitude, attention, interest, body language, facial expression and eye contact.” (Lenix, supra, 44 Cal.4th at p. 622.)
TO BE CONTINUED AS PART II….
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