P. v. Juarez

Filed 4/18/07 P. v. Juarez CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Paul E. Zellerbach, Judge. Affirmed.

Gerald J. Miller, under appointment by the Court of Appeal, for Defendant and Appellant Jose Guadalupe Juarez.

Cara DeVito, under appointment by the Court of Appeal, for Defendant and Appellant Julian Hernandez Radilla.

Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Gil Gonzalez, Supervising Deputy Attorney General, and Lynne G. McGinnis, Deputy Attorney General, for Plaintiff and Respondent.

I. INTRODUCTION

A jury found defendants guilty as charged of transportation of methamphetamine (Health & Saf. Code,  11379, subd. (a);^[1]count 1), possession of methamphetamine for sale ( 11378; count 2), possession of cocaine ( 11350, subd. (a); count 3), and transportation of cocaine ( 11352, subd. (a); count 4). Juarez admitted he had two prior narcotics-related convictions within the meaning of section 11370.2. Juarez was sentenced to 10 years in prison.^[2] Radilla was granted probation and given credit for time served. Defendants appeal, and join each others contentions.

First, defendants contend the trial court erroneously denied their Batson/Wheeler^[3]motions alleging the prosecutor improperly excluded six Hispanics from the jury on the basis of race or ethnicity. We conclude that the trial court fully and properly considered the prosecutors stated reasons for excluding the six Hispanic jurors; that substantial evidence supports the courts conclusion that the prosecutors stated reasons were race-neutral and genuine; and that defendants have failed to demonstrate group bias based on a comparative analysis of the prosecutors stated reasons for excusing the six Hispanic jurors with similar characteristics of unexcused jurors.

Second, Radilla contends the trial court erroneously admitted into evidence at trial statements he made at the police station after waiving his Miranda^[4] rights. We reject this contention, because the totality of the circumstances show the statements were voluntary and therefore admissible.

Finally, Radilla claims the court violated his privacy rights under the federal and state Constitutions by ordering him to submit to DNA testing. (Pen. Code,  296.) We reject this claim, as have numerous other courts. Accordingly, we affirm the judgments.

II. FACTS AND PROCEDURAL HISTORY

A. TheTraffic Stop and Arrest

On February 26, 2005, at around 11:30 p.m., Beaumont Police Officer Jennifer Lawhorn was driving in her marked patrol unit in Beaumont. A maroon van traveling northbound failed to make a stop at a stop sign. Lawhorn pulled behind the van, activated her overhead lights, and stopped the van. After Lawhorn activated her lights, she saw a white plastic bag fly out of the front passenger window and land in a nearby dirt area.

Lawhorn ordered the driver, whom she identified in court as Juarez, out of the van at gunpoint. She asked Juarez, Who threw that shit out of the car? Juarez responded, What shit? Lawhorn then looked inside the van and saw that Radilla was in the passenger seat. Lawhorn called for backup. After backup officers arrived, she retrieved the white plastic bag and placed it on the hood of her patrol car.^[5]

Later, the substance inside the white plastic bag was tested and found to consist of crystal methamphetamine. The methamphetamine was divided into four separate baggies. The net weight of the methamphetamine in three of the baggies was approximately seven grams. The net weight of the methamphetamine in the fourth baggie was 11.85 grams. Inside the van, Lawhorn found a clear plastic bag containing .71 grams of cocaine. The bag of cocaine was under the passenger seat on the extreme left side, in a place accessible to the driver and passenger.^[6]

B. Radillas Statements to Officer Macias at the Scene

Officer Miguel Macias, a Spanish speaking officer, was dispatched to the scene to communicate with defendants. When Macias arrived, Radilla was seated on the curb, and Juarez was in a different area, speaking to Lawhorn. According to Macias, Radilla appeared to be upset.

Without reading Radilla his Miranda rights, Macias showed Radilla the bag of methamphetamine and asked him whether he knew what it was. Radilla responded, No. But from what I could see, its crystal [methamphetamine]. On the videotape, Macias is also heard asking Radilla whether he had seen Juarez use the methamphetamine. Radilla responded, No. Radilla also told Macias, I will be honest with you, I use cocaine. Radilla said cocaine was the only drug he used, and he only used it once in a great while.

No further questions were asked of Radilla at the scene. The jury was later admonished to disregard the statements Radilla made to Macias at the scene.

C. Defendants Conversation Inside the Patrol Car

After speaking with Radilla, Macias placed defendants in the back of Lawhorns patrol car and told them not to speak to each other. Macias admitted at trial that this was a tactic designed to get defendants to speak to each other; otherwise, they would have been placed in separate patrol cars. Inside the patrol car, defendants spoke to each other, and their conversation was recorded on the videotape.

During their conversation in the patrol car, Juarez asked Radilla what he had said to the officers, and specifically whether he told them to whom the methamphetamine belonged. Radilla said he told the officers he did not know anything because he was asleep. Juarez told Radilla that, in any case, they were both going to jail. Juarez indicated he would take the blame for throwing the white bag out of the window so Radilla could go free. Radilla agreed with the suggestion, telling Juarez to [d]eclare yourself guilty because he, Radilla, had kids. Radilla said, This happened to me for being stupid, for being an idiot.

D. Radillas Statements to Macias at the Police Station

Later, at the police station, Macias read Radilla his Miranda rights in the presence of Juarez. Radilla told Macias he wanted to speak to him in private, meaning outside the presence of Juarez. Outside the presence of Juarez, Macias interviewed Radilla for approximately 15 to 20 minutes. Radilla told Macias that he and Juarez used to be neighbors. That evening, Juarez came to Radillas house in Perris, and asked whether he would accompany him to visit his girlfriend in Beaumont. Radilla claimed he fell asleep in the van and did not awaken until the police pulled them over. They did not stop anywhere between Perris and the traffic stop in Beaumont.

Radilla reiterated to Macias that, From what you showed me earlier when I was detained [during the traffic stop], I recognized the items in the baggie as being a white, rock-like substance to possibly be crystal. Macias then asked Radilla how he knew the substance was crystal, and Radilla responded, I have been around it. I have never used it. Radilla also told Macias, as he had at the scene, I will be honest with you, I use cocaine, that cocaine was the only drug he used, and he only used it once in a great while.

E. ThePrior Conduct Evidence Against Juarez

The prosecutor introduced three instances of Juarezs prior conduct as evidence of his knowledge and intent in possessing the narcotics found in the van. (Evid. Code,  1101, subd. (b).) On December 4, 2003, at around 8:00 p.m., sheriffs deputies executed a search warrant at Juarezs residence in Perris. A wallet belonging to Juarez was underneath a pillow on his bed. The wallet contained a plastic bindle with 2.5 grams of cocaine. A scale with white residue was found in Juarezs dresser drawer.

On December 11, 2004, Beaumont Police Officer Fredrick Steward stopped a vehicle driven by Juarez because it had a cracked windshield. There was a bindle containing .5 grams of cocaine in Juarezs right front pocket. A black gram scale and another bindle containing a white crystalline substance was found inside the drivers side door. Juarez told Steward that the substance was Power Boost Creatine which he mixes with cocaine.

On February 2, 2005, at around 7:30 p.m., Sheriffs Deputy Wilfredo Collazo went to Juarezs apartment in Perris. Juarezs face was pale, his speech was rapid, and he was somewhat sweaty. Collazo, who was trained as a drug-recognition expert, opined that Juarez was under the influence of a central nervous stimulant, such as cocaine or methamphetamine. Collazo took a urine sample from Juarez and sent it to a lab for analysis. The sample tested positive for cocaine metabolites, methamphetamine, and amphetamines.

F. Marc Benders Expert Testimony

Marc Bender, an investigator with the Riverside County Sheriffs Department, testified as an expert concerning the simple possession and possession for sale of controlled substances. Bender testified that drug dealers frequently work together. When drug dealers are in a car, one person, the shot caller, drives the car and is usually more involved in the drug trade. The other person, known as a yard dog or gopher, is a passenger, delivers the drugs to customers, and is usually paid with drugs.

In Benders opinion, the white bag thrown from the van was possessed for sale. He based his opinion on the amount of methamphetamine in the white bag, the way the methamphetamine was packaged, the quantity in each baggie, and its probable total cost ($800 to 900). Bender opined that .71 grams of cocaine, the amount found inside the van, was a usable amount. According to Bender, it was impossible for a lay person to determine, merely by visually examining the white bag thrown from the van, whether the four baggies inside of it contained cocaine or methamphetamine.

III. DISCUSSION

A. Defendants Batson/Wheeler Claims Are Without Merit

Defendants claim the trial court erroneously denied two Batson/Wheeler motions the defense made on the ground the prosecutor used peremptory challenges to exclude six Hispanic or Latino prospective jurors, F.S., R.L, E.S., S.R., D.C., and M.M., on the basis of their ethnicity. For the reasons set forth below, we reject this claim.

1. Overview of Applicable Law

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 state Constitution. [Citations.] Such a practice also violates the defendants right to equal protection under the Fourteenth Amendment. [Citations.]

The United States Supreme Court has recently reaffirmed that Batson states the procedure and standard trial courts should use when handling motions 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.] [Citation.] (People v. Lewis and Oliver (2006) 39 Cal.4th 970, 1008-1009.)

The trial courts ruling on this issue is reviewed for substantial evidence. [Citation.] We review a trial courts determination regarding the sufficiency of a prosecutors 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 courts 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.] [Citation.] (People v. Ward (2005) 36 Cal.4th 186, 200.)

2. The Defense Motions

After the original venire was screened for hardship and several prospective jurors were excused for cause, the parties began exercising peremptory challenges. The prosecutor used his first peremptory challenge to exclude R.L. After the defense jointly exercised two peremptory challenges, the prosecutor used his second peremptory challenge to excuse a non-Hispanic juror. The court then called 10 more prospective jurors into the jury box, including D.C.

Following questioning of the new prospective jurors, the court excused one for hardship and one for cause, and peremptory challenges resumed. The prosecutor used his third peremptory challenge to excuse another non-Hispanic juror. He used his fourth and fifth peremptory challenges to excuse E.S. and F.S. At this point, the defense was willing to accept the panel as constituted. The prosecutor then used his sixth peremptory challenge to excuse S.R. and his seventh to excuse D.C. This brought the number of Hispanic or possibly Hispanic jurors excused by the prosecution to a total of five out of seven peremptory challenges: R.L., E.S., F.S., S.R., and D.C. At this point, the defense requested a sidebar.

Outside the presence of the jury, Juarez made a Batson/Wheeler motion, which Radilla joined. Counsel for Juarez argued the prosecutor had excluded E.S., F.S., and D.C. because they were all Latinos; he did not see anything that . . . would justify the prosecution kicking them other than the fact that they were all Latino. Counsel for Radilla added S.R. to his motion, noting that, although S.R. did not appear to be Hispanic, her surname indicated she was either Latino herself or married to a Latino. Counsel for Radilla argued that none of the six Hispanic prospective jurors the prosecutor excused had indicated any sort of bias against or animosity toward the prosecution.

The court responded it was going to go back even further to the prosecutions first peremptory challenge of R.L. The court observed that, although R.L. appeared to be Asian or Filipino rather than Hispanic, she had a Hispanic surname which indicated she may have been married to a Latino. The court then found the defense had made a prima facie case of exclusion based on group bias regarding R.L., E.S., F.S., and D.C., and asked the prosecutor to explain the reasons for his peremptory challenges to these four prospective jurors. Although the court did not mention S.R., the prosecutor provided explanations for his excusal of S.R., as well as R.L., E.S., F.S., and D.C.

The prosecutor explained he had excused R.L., because of what happened to her husband. R.L. was an accounting assistant with two small children. During voir dire, she complained of a bad experience with law enforcement after her husband had been assaulted with a crowbar. The prosecutor said R.L. became very emotional when describing the incident and felt that the officers did not treat her or her husband fairly. The prosecutor believed R.L.s negative experience with law enforcement would affect her when listening to the law enforcement officers in this case. The prosecutor also said he was not required to limit his challenges to persons who were prodefense as long as his excusals were not based on group bias.

The prosecutor next explained his reasons for excusing S.R. S.R. had a brother-in-law who had been convicted of an unspecified sexual offense. She did not indicate she believed her brother-in-law had been treated unfairly by law enforcement. However, the prosecutor thought S.R. did not try to disassociate herself from this man and was maybe too forgiving regarding what her brother [sic] had allegedly done. He said he personally would be disgusted if [he] had a family member who was serving time for sex-related offenses and [he] would want everyone to know that.

The prosecutor said he excused E.S. because she associated with people who used drugs. E.S. had a friend who was murdered when the friend and the murderer were under the influence of drugs. E.S. said she knew others who used drugs, she believed drugs could mess a person up, and she had tried to stop those friends from using drugs but they would not listen to her.

The prosecutor said the main reason he excused F.S. was because F.S. was too young, and another prospective juror (who was later seated as juror No. 6) was also young. The prosecutor said, I dont want too many young jurors on the panel that will be influenced by the older jurors telling them what to do. F.S. was a construction worker. In addition, the prosecutor said F.S. seemed more interested in and more inclined to listen to questions posed by counsel for Juarez rather than the prosecutor.

The prosecutor explained he excused D.C. because D.C. had two brothers-in-law who had been convicted for drug-related crimes and, as a result, D.C. may have had extensive knowledge of drugs. D.C. was an engineer who developed software for fraud and identity theft solutions. He had two brothers-in-law who had been convicted of various crimes ranging from DUI to felonies. One of the felonies was drug related; the other was battery. D.C. said he was firmly against drugs because the problems of his brothers-in-law had negatively affected his family. Still, the prosecutor said he did not feel comfortable having someone on the jury who had relatives who had been convicted of drug-related crimes, even if the relatives were in-laws.

Lastly, the prosecutor noted that the defense had excused numerous Hispanics from the venire. In response to this comment, the court correctly noted that, although the defense had also used peremptory challenges to excuse Hispanic jurors, this was irrelevant to its analysis of whether the prosecution systematically excluded Hispanic jurors on the basis of ethnicity. Still, the court expressly accept[ed] the prosecutors reasons for excusing R.L., S.R., E.S., F.S., and D.C as genuine and race-neutral, and denied the motion.

After voir dire resumed, the prosecutor used his eighth peremptory challenge to excuse a non-Hispanic juror, and his ninth to excuse M.M. At this point, the defense made another joint Batson/Wheeler motion on the grounds that nothing M.M. said indicated he was pro-defense. M.M. was an operations manager for an electrical distribution company. He said he had a friend whose brother was currently awaiting trial for possession and sales of methamphetamine.

Counsel for Radilla argued that M.M. was not pro-drug because he did not say he was for the legalization of marijuana when he had an opportunity to do so. Counsel for Juarez added that, although M.M. appeared to be fairly young, it was amazing that the only young people that are getting [excused by the prosecution] happen to have Spanish surnames. Counsel for Radilla observed that M.M. was not young; rather, he appeared to be in his late 20s or early 30s, as did F.S., whom the prosecutor had previously excused partly because he was young. The court found that the defense had made a prima facie case, and asked the prosecutor to explain his reasons for excusing M.M.

The prosecutor explained that he excused M.M. for several reasons. First, M.M. appeared to be young and, as he said before, he did not want a lot of young jurors on the case and had already decided he wanted to keep other jurors who appeared to be young. Second, M.M. wore a T-shirt on the first and second days of voir dire, and this made the prosecutor question some things about him. The prosecutor said that, in his experience, most veniremen dressed more professionally on the second day of voir dire. Third, M.M. knew someone who sold and used methamphetamine, and he preferred to excuse persons who had been around drugs or who associated with anyone who used drugs unless they expressed that they were strongly against drugs. For example, the prosecutor said he did not intend to excuse prospective juror G.R. because she clearly expressed she was against drugs although she had a stepbrother with drug-related criminal convictions.^[7]

In response, defense counsel collectively argued that M.M. was not young and had a responsible [managerial] position. Nor was there anything to indicate that M.M. was close to his friends brother, the only person M.M. knew who sold and used drugs. Defense counsel observed that almost everyone on the panel knew someone who had been touched somehow by drugs.^[8] Finally, defense counsel observed that, following M.M.s dismissal, every young prospective juror on the panel was non-Hispanic. As an example, counsel pointed out prospective juror E., who was both young and White.^[9] In response, the prosecutor said he intended to excuse E. next.

The court questioned the prosecutors excusal of M.M. based on his dress, noting that, in its experience, veniremen usually get more dressed up on the first day of court but not thereafter. In response, the prosecutor observed that juror Nos. 2 and 6 had dressed well for court that day, and that juror No. 6 was Hispanic and he had no intention of excusing her. With that, the court found the prosecutor had been consistent with respect to excusing jurors, Latino or not, who basically have any experience directly or indirectly with drug usage, and accepted the prosecutors reasons for excusing M.M. as genuine and race-neutral. Accordingly, the court denied defendants second Batson/Wheeler motion.

After voir dire resumed, the prosecutor used his ninth peremptory challenge to excuse E. He used his tenth peremptory challenge to excuse another non-Hispanic, K., whose father was incarcerated for the drug-related murders of K.s sister and stepmother. Finally, the prosecutor used two more peremptory challenges to excuse two more non-Hispanics, a Jehovahs Witness who had advised the court that her conscience would not allow her to sit in judgment on another person, and an accountant whose nephew had been arrested for cocaine and whose parents had been addicted to prescription drugs.

After the defense excused one more prospective juror, the parties accepted the jury as constituted and stipulated to two alternate jurors. When the jury was empanelled, there were only six veniremen left who were neither excused on the basis of hardship, cause, or peremptory challenge. Only one seated juror, juror No. 6, was Hispanic. None of the other jurors or the alternates were identified as Hispanic.

3. Substantial Evidence Analysis

Radilla claims the trial court did not fully and properly evaluate the prosecutors explanations for excusing R.L., E.S., F.S., S.R., D.C., and M.M. More specifically, he argues that, although this appellate court is required to defer to a trial courts findings of a prosecutors credibility and sincerity, we can only do so when the [trial] court has clearly expressed its findings and rulings and the bases therefor. (People v. Reynoso (2003) 31 Cal.4th 903, 929 (Reynoso).) Indeed, he says, more is required of the trial court than a global finding that the [prosecutors] reasons appear sufficient. (People v. Silva (2001) 25 Cal.4th 345, 386.) Juarez joins this contention without additional argument. We find it without merit.

First, Radilla quotes Reynoso and Silva out of context. The Reynoso court said, When the prosecutors stated reasons are both inherently plausible and supported by the record, the trial court need not question the prosecutor or make detailed findings. But when the prosecutors stated reasons are either unsupported by the record, inherently implausible, or both, more is required of the trial court than a global finding that the reasons appear sufficient. (Reynoso, supra, 31 Cal.4th at p. 923.)

The Reynoso court further observed that neither [People v. Fuentes (1991) 54 Cal.3d 707, 716, fn. 5] nor Silva requires a trial court to make explicit and detailed findings for the record in every instance in which the court determines to credit a prosecutors demeanor-based reasons for exercising a peremptory challenge. The impracticality of requiring a trial judge to take note for the record of each prospective jurors demeanor with respect to his or her ongoing contacts with the prosecutor during voir dire is self-evident. (Reynoso, supra, 31 Cal.4th at p. 929.)

Indeed, a trial court must make a sincere and reasoned attempt to evaluate the prosecutors explanation[s] in light of the circumstances of the case as then known, [the courts] knowledge of trial techniques, and [the courts] observations of the manner in which the prosecutor has examined members of the venire and has exercised challenges for cause or peremptorily . . . . [Citations.] But in fulfilling that obligation, the trial court is not required to make specific or detailed comments for the record to justify every instance in which a prosecutors race-neutral reason for exercising a peremptory challenge is being accepted by the court as genuine. This is particularly true where the prosecutors race-neutral reason for exercising a peremptory challenge is based on the prospective jurors demeanor, or similar intangible factors, while in the courtroom. (Reynoso, supra, 31 Cal.4th at p. 919.)

Where . . . the trial court is fully apprised of the nature of the defense challenge to the prosecutors exercise of a particular peremptory challenge, where the prosecutors reasons for excusing the juror are neither contradicted by the record nor inherently implausible [citation], and where nothing in the record is in conflict with the usual presumptions to be drawn, i.e., that all peremptory challenges have been exercised in a constitutional manner, and that the trial court has properly made a sincere and reasoned evaluation of the prosecutors reasons for exercising his peremptory challenges, then those presumptions may be relied upon, and a Batson/Wheeler motion denied, notwithstanding that the record does not contain detailed findings regarding the reasons for the exercise of each such peremptory challenge. (Reynoso, supra, 31 Cal.4th at p. 929.)

Here, the prosecutor gave detailed, specific reasons for excusing R.L., E.S., F.S., S.R., D.C., and M.M. and the trial court accepted the reasons as genuine and not based on group bias. Because each of the prosecutors stated reasons were inherently plausible and supported by the record, the trial court was not required to make detailed findings. (Reynoso, supra, 31 Cal.4th at p. 923.) Furthermore, nothing in the record indicates that the trial court did not make a sincere and reasoned attempt to evaluate the genuineness of the prosecutors proffered explanations. (Id. at pp. 919, 929.) And substantial evidence supports the courts conclusion that the prosecutors reasons for excusing the six prospective Hispanic jurors were legitimate in the sense of being nondiscriminatory, that is, not based on group bias. (People v. Guerra (2006) 37 Cal.4th 1067, 1101.)

The prosecutor said he excused R.L. because she had a bad experience with law enforcement and, as a result, he feared she would not fairly assess the testimony of the police officers in the case. Indeed, R.L. spoke up when the prospective jurors were asked whether any of them had ever had a bad experience with law enforcement. She explained her husband had been attacked with a crowbar, and the police tried to turn it around by saying it was his fault for being in the wrong place at the wrong time. She said the police wanted nothing to do with her when she tried to talk to them, and the police protected the people that were causing the problem to begin with. So yeah, it was a bad experience. R.L. thus indicated she harbored biased views against law enforcement. This was a legitimate, nondiscriminatory reason for excusing R.L. (People v. Avila (2006) 38 Cal.4th 491, 544-545, 547 [juror properly excluded on grounds she had personal experience with police that led her to question the veracity of police officers].) And substantial evidence supports the trial courts conclusion that R.L.s biased views against law enforcement was in fact the reason the prosecutor excluded her.

Substantial evidence also supports the trial courts conclusion that the prosecutor excused E.S. for legitimate, nondiscriminatory reasons. The prosecutor said he excused E.S. because she associated with people who used drugs and appeared to be too sympathetic toward drug users. E.S. had a friend who was murdered when the friend and the murderer were under the influence of drugs. E.S. said, A lot of people I know still do drugs, whatever. But I dont know ‑‑ the situations are just different. E.S. later said she still associated with people who were drug users even though she told them to stop, and most of them would not listen to her. E.S.s apparently lax or permissible attitude toward drug use and its effects was a legitimate reason for excusing her in this case ‑‑ where both defendants were charged with drug-related crimes. (People v. Dunn (1995) 40 Cal.App.4th 1039, 1055 [defense counsel not ineffective for failing to challenge prosecutions excusal of juror who personally knew methamphetamine users, where case involved use of methamphetamine].)

Substantial evidence also supports the trial courts determination that the prosecutors stated reasons for excusing F.S. were legitimate. The prosecutor said the main reason he excused F.S. was because F.S. was too young, and he did not want too many young jurors on the panel because they would be influenced by the older jurors telling them what to do. The prosecutor also said that F.S. seemed more inclined to listen to questions posed by counsel for Juarez, and I just had a gut feeling that because of his young age and because he seemed like he was more interested in what [counsel for Juarez] was saying, thats why I excused him.

Indeed, the record indicates that F.S. was immature, generally uninterested in the proceedings, and susceptible to being unduly influenced by other jurors. F.S. said he thought he might tune out of the trial after a while. And, when asked what the words burden of proof made him think of, he said, I dont really have an answer for that. This was immediately after counsel for Juarez read the first paragraph of CALJIC No. 2.90^[10]to prospective jurors, and told them he wanted to talk about the principle of reasonable doubt. F.S.s youth, his related inability or unwillingness to concentrate on or understand the proceedings, and his apparent bias in favor of the defense, were all permissible reasons for excusing him. (Wheeler, supra, 22 Cal.3d at p. 275 [peremptory challenge may be based on broad spectrum of reasons, with no single reason being determinative]; People v. Turner (1994) 8 Cal.4th 137, 169, overruled on different grounds in People v. Griffin (2004) 33 Cal.4th 536, 555, fn. 5 [jurors inability to understand proceedings was proper basis for excusing him].)

We must also defer to the trial courts finding that the prosecutors reasons for excusing S.R. were legitimate. (Reynoso, supra, 31 Cal.4th at p. 929.) The prosecutor said he excused S.R. because she had a brother (actually, it was her brother-in-law) who had been convicted of an unspecified sexual offense and, in the prosecutors opinion, S.R. did not try to disassociate herself from this man and was too forgiving regarding what [he] had allegedly done. According to the prosecutor, S.R. did not appear to be angry or disgusted by her brother-in-laws offense. Indeed, the record shows that S.R. did not attempt to disassociate herself from her brother-in-law. And S.R.s apparent antipathy or sympathy toward her brother-in-laws behavior was a legitimate reason for excusing her. The prosecutors stated reasons for excusing S.R. were neutral as to her ethnicity, and were neither contradicted by the record nor inherently implausible. (Ibid.; People v. Jurado (2006) 38 Cal.4th 72, 105.)

The prosecutor said he excused D.C., the software engineer, because D.C. had two brothers-in-law with drug-related criminal convictions. Actually, the record indicates that only one of the two brothers-in-law had a drug-related felony conviction. D.C. said he was firmly against drugs because the problems of his brothers-in-law had negatively affected his family. The prosecutor said he did not feel comfortable having someone on the jury who had relatives with drug-related convictions, even if the relatives were in-laws. The prosecutor was also concerned that D.C. may have extensive knowledge of drugs, and he did not want that kind of person on the jury. The prosecutor thus indicated that D.C.s experiences with his brothers-in-law may have undermined his ability to be an impartial judge of the evidence against defendants, both of whom were charged with drug-related crimes. This was a legitimate reason for excusing D.C. (People v. Avila, supra, 38 Cal.4th at pp. 544-545, 547.)

Finally, the prosecutor said he excused M.M. for three reasons: M.M. was young and the prosecutor did not want too many young jurors; M.M. wore a T-shirt on both the first and second days of voir dire; and M.M. said he knew someone who was awaiting trial for selling and using methamphetamine, but he did not express that he was strongly against drugs. The prosecutor said he preferred to excuse persons who had been around drugs or who associated with anyone who used drugs unless they expressed that they were strongly against drugs.

As the trial court observed and as the record indicates, the prosecutor consistently excused jurors who had any experience directly or indirectly with drug usage, whether Latino or not. The sole exception was prospective juror G.R., whom the prosecutor said he did not intend to excuse because she clearly expressed she was against drugs although she had a stepbrother with drug-related criminal convictions.^[11]

Notwithstanding the prosecutors failure to challenge G.R. based on the same general reasons he challenged E.S., D.C., and M.M. (relationships to or connections with drug users or persons with drug-related criminal convictions), substantial evidence supports the trial courts conclusion that the prosecutors stated reasons for excusing M.M. were genuine. The record indicates that M.M. was younger than most of the other prospective jurors and that he dressed casually on both days of voir dire, indicating he harbored a lack of sober-mindedness toward the proceedings. (People v. Huggins (2006) 38 Cal.4th 175, 236.)

4. Comparative Analysis

Radilla and Juarez also claim that the trial court erroneously failed to compare the prosecutors stated reasons for excusing R.L., E.S., F.S., S.R., D.C., and M.M with his failure to excuse similarly situated non-Hispanic jurors. In Miller-El v. Dretke (2005) 545 U.S. 231, 241 [125 S.Ct. 2317, 162 L.Ed.2d 196], the high court stated that [i]if a prosecutors proffered reason for striking a [B]lack panelist applies just as well to an otherwise-similar non[B]lack who is permitted to serve, that is evidence tending to prove purposeful discrimination to be considered at Batsons third step. Defendants argue that a similar comparative analysis in this case demonstrates that the prosecutors stated reasons for excusing R.L., E.S., F.S., S.R., D.C., and M.M were pretextual and based on group bias.

Defendants did not ask the trial court to engage in the same comparative analysis that they set forth on this appeal, but argue that we should do so. The state Supreme Court has held that a reviewing court is not required to engage in a comparative analysis of jurors for the first time on appeal. (People v. Johnson (1989) 47 Cal.3d 1194, 1220.) Such an analysis fails to account for the variety of factors that inform or underlie an attorneys decision to excuse certain jurors while not excusing others who appear to be similar. It also fails to account for the fact that the same factor may be given different weight from juror to juror depending on the number of challenges an attorney has remaining and as the combination of jurors changes as the other party exercises its challenges. (Ibid.)

But assuming, without deciding, that Miller-El requires us to perform an analysis comparing jurors the prosecutor excused with those he did not excuse, defendants proffered comparative analyses does not demonstrate the prosecutor excused any juror on the basis of group bias. (People v. Ledesma (2006) 39 Cal.4th 641, 679.) Indeed, defendants point only to isolated and discrete similarities between some of the jurors the prosecutor challenges, R.L., E.S., F.S., S.R., D.C., and M.M., and other jurors whom the prosecutor did not challenge. But isolated and discrete similarities do not make two prospective jurors similarly situated for comparative analysis purposes. (People v. Huggins, supra, 38 Cal.4th at p. 234; People v. Lewis and Oliver, supra, 39 Cal.4th at p. 1019, fn. 15.)

Defendants claim that, because several seated jurors either knew someone or had family members who had abused drugs, the prosecutors reasons for excusing E.S., D.C., and M.M. must have been pretextual. For example, defendants observe that juror No. 6 had neighbors who sold drugs, but juror No. 6 said she did not associate with those neighbors. This distinguished juror No. 6 from E.S., who continued to associate with individuals who used drugs, and from D.C., who had at least one brother-in-law with a drug-related conviction and whose wife and family had been adversely affected by the brother-in-laws drug-related problems. It also distinguished juror No. 6 from M.M., who said he knew someone who was pending trial on drug charges.^[12]

Although defendants cite numerous examples of non-Hispanic, sitting jurors with characteristics similar to R.L., E.S., F.S., D.C., and M.M., they do not identify a single, sitting non-Hispanic juror who was truly comparable to either R.L., E.S., F.S., D.C., or M.M. Specifically, they do not identify a single, sitting non-Hispanic juror who, like R.L., complained about a negative experience with law enforcement; who, like E.S., continued to personally associate with people who used drugs; who, like F.S., was young, evinced a willingness to listen more to defense counsel than the prosecutor, and who said he would probably tune out during the trial; who, like S.R., had a relative convicted of a sex offense but who did not express any disapproval or distance herself from that relative; who, like D.C., was related to a person with a drug conviction and who, as a result, probably knew too much about drugs; or who, like M.M., was both young and sloppily dressed.

Instead, defendants, and particularly Juarez, argue that the prosecutors proffered reasons for excusing R.L., E.S., S.R., F.S., D.C., and M.M. must have been pretextual because these jurors were all desirable prosecution jurors. He reasons that R.L., E.S., F.S., D.C., and M.M. were pro-prosecution because they each had family members who were robbery victims and E.S. also had a friend who was murdered in a drug-related crime and regularly counseled friends against using drugs; he fails to explain why S.R. was a pro-prosecution juror, although he argues that both F.S. and S.R. were subjected to a desultory or perfunctory examination by the prosecution. This argument utterly fails to show that either R.L., E.S., F.S., D.C., or M.M. were excused based on group bias, particularly in view of the trial courts determination that the prosecutors reasons for excusing these jurors were genuine and not based on group bias.

Juarez also argues that the prosecutors reasons for excluding R.L., E.S., S.R., F.S., D.C., and M.M. were either implausible or did not otherwise withstand scrutiny. Specifically, Juarez argues that E.S., whom the prosecutor said he excused because she continued to personally associate with people who used drugs, had a vivid and adverse experience with drugs and strong anti-drug stance. This argument quibbles with the prosecutors impression of E.S. as too lenient toward drugs, which the record supports and the trial court found was genuine. Similarly, Juarez argues that the prosecutor did not genuinely excuse F.S. or M.M. based on their youth because F.S. and M.M. were not in fact young and other unexcused jurors were also young. This argument disregards the other, race- and ethnicity-neutral reasons the prosecutor stated for excusing F.S. and M.M., which the record also supports and the trial court found were genuine.

B. Radillas Post-Miranda Statements to Macias Were Properly Admitted

Radilla claims the trial court prejudicially erred in denying his motion to suppress statements he made to Macias at the police station after he was given Miranda warnings and waived his Miranda rights. Based on the United States Supreme Courts decision in Missouri v.Seibert (2004) 542 U.S. 600 [124 S.Ct. 2601, 159 L.Ed.2d 643] (Seibert), he argues that his Mirandized or advised statements to Macias at the police station were involuntary and therefore inadmissible, essentially because Macias obtained identical statements from him at the scene of the traffic stop without first giving him Miranda warnings and without obtaining a Miranda waiver. We conclude that Maciass initial interrogation of Radilla at the scene of the traffic stop did not affect Radillas later decision to waive his Miranda rights and speak to Macias at the police station; thus, Radillas advised statements at the police station were properly admitted.

1. Background

In the middle of trial, Radilla moved to exclude his initial statements to Macias at the scene of the traffic stop, as well as his subsequent statements to Macias at the police station, on the grounds that both sets of statements were taken in violation of Miranda. At the time the motion was made, the jury had already heard testimony concerning both sets of statements.^[13]

The court held an evidentiary hearing. Macias testified he did not know whether Radilla or Juarez had been Mirandized before he (Macias) arrived on the scene; however, he knew they were in custody. In speaking to Radilla, he first obtained Radillas name and birth date, and Radilla told him he was a passenger in the van.

As discussed above, Macias then retrieved the bag of methamphetamine from the hood of Lawhorns patrol car, and asked Radilla whether he knew what it was. Radilla responded that the bag did not belong to him, but he knew that it contained crystal methamphetamine. Macias also asked Radilla to whom the methamphetamine belonged. In response to the second question, Radilla said he did not know.

Macias denied he intended to elicit any incriminating statements from Radilla. He admitted, however, that he knew that knowledge of the narcotic nature of a substance is an element of several drug-related offenses. Macias also believed his Mirandized interview with Radilla at the police station had been recorded, but in fact it was not. However, a videotape was taken of Macias reading Radilla his Miranda rights in the booking area.

The court found that defendants were in custody at the scene of the traffic stop; thus, Miranda warnings were required to be given before any statements were taken. The court further found that, because no Miranda warnings were given at the scene, Radillas statements at the scene were inadmissible, and later instructed the jury to disregard those statements.

Radilla moved to exclude his police station interview statements on the ground they were fruit of the poisonous tree. The court deferred ruling on this part of the motion pending further briefing. On the following day, defense counsel clarified that his new motion was based on the ground that Radillas advised statements at the police station were not voluntary under the totality of the circumstances, including the interrogation at the scene of the traffic stop.

The court said, I think there is an issue with respect to fruit of the poisonous tree. And the real issue is whether or not that initial Miranda violation taints the subsequent waiver given by Mr. Radilla. After acknowledging the Seibert decision and discussing the relevant circumstances, the court ruled that Radillas statements at the police station were voluntary under the totality of the circumstances and therefore admissible.

2. Applicable Law

In Miranda, the high court found that, before law enforcement officials may interrogate a suspect who is in custody, they must clearly inform the suspect that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed. (Miranda, supra, 384 U.S. at pp. 473-474.) Statements obtained in violation of Miranda are presumed involuntary and are therefore inadmissible in the prosecutions case-in-chief against the suspect. (Id. at pp. 476; Siebert, supra, 542 U.S. at pp. 608-610.)

But even if an initial statement is obtained in violation of Miranda, a subsequent statement that is obtained following Miranda warnings and a waiver will be admissible provided that both the initial, unlawfully obtained statement and the subsequent, advised statement were voluntarily given. A subsequent administration of Miranda warnings to a suspect who has given a voluntary but unwarned statement ordinarily should suffice to remove the conditions that precluded admission of the earlier statement. In such circumstances, the finder of fact may reasonably conclude that the suspect made a rational and intelligent choice whether to waive or invoke his rights. (Oregon v. Elstad (1985) 470 U.S. 298, 314 [105 S.Ct. 1285, 84 L.Ed.2d 222].)

In Siebert, the high court recognized that a question first interrogation, in which police fail to provide a Miranda advisement and fail to obtain an express waiver before questioning a suspect, threatens to thwart Mirandas purpose of reducing the risk that a coerced confession will be admitted. (Siebert, supra, 545 U.S. at pp. 610-611.) The court observed that the question first method of interrogation was a practice of some popularity because the police recognize they may be more likely to obtain an admissible confession following a Miranda advisement and waiver if they have already obtained the same confession without a Miranda advisement and waiver. (Ibid.)

The object of question-first is to render Miranda warnings ineffective by waiting for a particularly opportune time to give them, after the suspect has already confessed. (Siebert, supra, 545 U.S. at p. 611.) Thus, [t]he threshold issue when interrogators question first and warn later is thus whether it would be reasonable to find that in these circumstances the warnings could function effectively as Miranda requires. (Id. at pp. 611-612, italics added.) For unless the warnings could place a suspect who has just been interrogated in a position to make such an informed choice, there is no practical justification for accepting the formal warnings as compliance with Miranda, or for treating the second stage of interrogation as distinct from the first, unwarned and inadmissible segment. (Id. at p. 612.)

Accordingly, the Siebert court identified a series of relevant facts that bear on whether Miranda warnings delivered midstream could be effective enough to accomplish their object [of affording a suspect the opportunity to make a free and rational choice whether to waive his privilege against self incrimination]. (Siebert, supra, 542 U.S. at pp. 611, 615.) These factors are: [1] the completeness and detail of the questions and answers in the first round of interrogation, [2] the overlapping content of the two statements, [3] the timing and setting of the first and the second, [4] the continuity of police personnel, and [5] the degree to which the interrogators questions treated the second round as continuous with the first. (Id. at p. 615.)

Applying these five factors, the Seibert court held that the defendants advised confession was inadmissible because her initial, unwarned interrogation was systematic, exhaustive, and managed with psychological skill, and there was little, if anything, of incriminating potential left unsaid. (Seibert, supra, 542 U.S. at p. 616.) Furthermore, the same officer conducted both interrogations at the same place, the police station, and the second interrogation took place only 15 to 20 minutes after the first had concluded. (Ibid.) And, when the interrogating officer gave Miranda warnings to Ms. Seibert, he did not advise her that her prior statement could not be used against her. Nor did he say or do anything to dispel any uncertainty on her part about a right to stop talking about matters previously discussed. (Ibid.)

Thus, the high court observed, It would have been reasonable [for the defendant to have regarded] the two sessions as parts of a continuum, in which it would have been unnatural to refuse to repeat at the second stage what had been said before. These circumstances must be seen as challenging the comprehensibility and efficacy of the Miranda warnings to the point that a reasonable person in the suspects shoes would not have understood them to convey a message that she retained a choice about continuing to talk. (Seibert, supra, 542 U.S. at pp. 616-617.)^[14]

3. Analysis

Radilla argues that Siebert compels the conclusion that his statements to Macias at the police station were inadmissible. He argues that, if [he] was coerced into making his first, in-field statement[s] to Officer Macias, and his admissions during that first [interview] were exploited to pressure him into continuing to speak to Officer Macias during the in-station interview, then the entirety of [his] second statement[s] remains involuntary.

In reviewing alleged Miranda violations, we must accept a trial courts resolution of disputed facts and inferences if they are supported by substantial evidence. Still, we independently determine whether the facts found by the trial court show that the challenged statements were unlawfully obtained. (People v. Stansbury (1995) 9 Cal.4th 824, 831.) Here, the circumstances surrounding Radillas statements to Macias at the scene of the traffic stop, his conversation with Juarez in the back of Lawhorns patrol car, and his subsequent statements to Macias at the police station were undisputed. Based on the totality of these circumstances, we independently conclude that Radillas statements at the police station were voluntary.

As the trial court observed, in giving Radilla the Miranda advisement at the police station, Macias made it very clear that Radilla did not have to talk to him. Macias told Radilla three times that he did not have to talk to him. He also told Radilla he could save it for [his] attorney or for the court, and he would not be asked any more questions. Notwithstanding these repeated admonishments, Radilla told Macias, on his own initiative, that he wanted to speak to him in private. This showed that Radillas decision to waive his Miranda rights and further speak to Macias was free and voluntary.^[15]

Indeed, by the time Macias read Radilla his Miranda rights at the police station, it appeared that Radilla was ready and willing to speak to Macias and wanted to exculpate himself as quickly as possible. He had already spoken with Juarez in the back of the patrol car. During that conversation, defendants talked about the possible charges and jail time they were facing. Radilla mentioned that he had children, and Juarez agreed to say he was the one who threw the bag of methamphetamine out of the passenger window.

As the trial court said, any initial taint of Radillas inadmissible statements at the traffic stop was quite dissipated by the time he was read his Miranda rights at the police station. By that time, Radilla knew he was facing charges for possession and sale of narcotics, and that the bag thrown from the van contained methamphetamine. Radilla was well aware of the situation he [was] involved in and its ramifications when he agreed to speak to Macias at the police station.

Radilla points out that, after giving Radilla the Miranda advisement, but before Radilla indicated he was willing to talk to Macias, Macias told Radilla he was probably facing seven or eight years for something he may not have done, and if he (Macias) were Radilla, he would not do that for Juarez. Radilla suggests this placed pressure on him and rendered his decision to speak not free or voluntary. But as discussed, Radilla already knew he was facing drug-related charges and substantial custody time. Under these circumstances, it is highly unlikely that Maciass statement about the seven or eight years had any bearing on Radillas decision to waive his Miranda rights and speak to Macias at the police station.^[16]

Radilla also observes that the same officer, Macias, conducted both the infield and police station interviews, and by the time of the police station interview, Macias had already asked Radilla whether he knew the substance in the bag was methamphetamine and had already gotten Radilla to admit he used cocaine. Based on these circumstances, Radilla argues that the second, advised interview was merely a continuation of the first, and that he reasonably understood he had no choice other than to waive his Miranda rights and continue speaking with Macias.

Under the particular circumstances of this case, we disagree. The totality of the circumstances showed Radilla freely and voluntarily chose to waive his rights and continue speaking to Macias at the police station.

C. The Order to Provide DNA Samples Did Not Violate Defendants Privacy Rights

At t