P. v. Kitlas

Filed 7/23/07 P. v. Kitlas CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

APPEAL from a judgment of the Superior Court of Los Angeles County. Elden S.  Fox, Judge. Affirmed.

________

Chris R. Redburn, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Scott A. Taryle and David A. Wildman, Deputy Attorneys General, for Plaintiff and Respondent.

_________

After a joint trial before separate juries, one jury acquitted Patrick Kitlas of first degree murder (count 1), but convicted him of second degree murder as a lesser-included crime; residential robbery (count 2); and residential burglary during which the victim was present (count 3). (Pen. Code, 187, subd. (a), 189; 211, 212.5; 459, 460, subd. (a), 667.5, subd. (c)(21); all further section references are to the Penal Code.) The second jury acquitted codefendant Mark Itaev of counts 1-3 but convicted him of three counts of false personation (counts 4, 7, and 8), identity theft (count 5), and perjury (count 6). Only Itaev was charged in counts 4-8. ( 529; 530.5; 118, subd. (a).)^[1] Later, Itaev admitted that he committed the crimes charged in counts 4-8 while released on bail or on his own recognizance in another case. ( 12022.1.) The court sentenced Kitlas to a 6-year upper term for the count 3 burglary, a consecutive 15 years-to-life term for the count 1 second degree murder, and a concurrent term on the count 2 robbery. The court sentenced Itaev to an aggregate 6-year, 8-month term. Both defendants appealed, but Itaev voluntarily abandoned his appeal, which we dismissed.

Kitlas contends that the court erred in denying his (I) suppression motion ( 1538.5); (II) motion to quash the jury venire based on the prosecutors allegedly discriminatory use of peremptory challenges to exclude all African-American jurors (Batson v. Kentucky (1986) 476 U.S. 79; People v. Wheeler (1978) 22 Cal.3d 258); and (III) request to instruct the jury regarding heat-of-passion voluntary manslaughter as a lesser-included crime of the count 1 murder.

We reject Kitlas contentions and affirm the judgment.

FACTS

A. Background.

Sometime before the Spring of 2004, Itaev, then 30 years old, befriended Kitlas, then 19 years old, and Kitlas girlfriend Audrey Lane, then 18 years old.^[2] Kitlas and Lane were homeless and living on the streets. Itaev sometimes allowed Kitlas and Lane to stay with him in motel rooms he rented. During April June 2004, Itaev was involved in a sophisticated identity theft business in which he acquired and used other peoples identification information to obtain false identification documents, produce and cash fraudulent checks, and fraudulently use others credit accounts. These acts resulted in the filing of counts 4-8, which were alleged to have occurred between April 24 and June 2, 2004, and of which Itaevs jury convicted him. Although police found Kitlas and Lane staying in motel rooms with Itaev in which evidence of identity theft was found, neither Kitlas nor Lane was charged with any identity theft-related crimes.^[3]

Also during the Spring of 2004, Itaev and his uncle Gary Itaev (hereafter, Gary) were informants for federal authorities. The Itaevs relationship as federal informants grew out of an attempt to assist Garys brother Meir, who had been convicted of federal crimes and was awaiting sentencing. Itaev and Gary had agreed with federal authorities to report crimes of which they learned in exchange for possible reductions in Meirs sentence.

B. The Murder of Aleksander Markzitser.

Early in the morning of June 8, 2004, sheriffs deputies found Markzitsers corpse lying on his bed in his apartment, which had been ransacked and bore signs of a struggle: the telephone lines had been neatly cut, interior doors showed signs of forced entry, and knickknacks on a table were overturned. In contrast, Markzitsers body was neatly clothed, and the sheets on his bed were neat, leading the deputies to suspect that he may have been killed elsewhere in the apartment and his body later placed on the bed. A neighbor found Markzitsers identification in the apartment laundry room. Deputies found Kitlas and Itaevs fingerprints inside the apartment, Kitlas on the top of a bedroom dresser, Itaevs on the inside and outside of two drawers of a bedroom nightstand and on a cordless telephone. They also found a condom in a sealed wrapper on the floor between the living room and hallway. An autopsy disclosed that Markzitser had been strangled to death, both manually and with a ligature, and had a blood alcohol level of 0.10 percent, corresponding to two to three drinks in a man of his weight. Although he did not testify, Kitlas did not dispute that he, Itaev, and Lane were with the victim in his apartment during the evening before his death, and that Kitlas choked and bound Markzitser. Rather, Kitlas defense at trial was that he left Markzitser alive and Itaev later killed him.

Lane testified that on the evening of June 7, several hours before the murder, she, Kitlas, and Itaev met outside a friends apartment. Kitlas and she were looking for a place to spend the night when Markzitser joined the trio. After a brief conversation, Markzitser, Itaev, and Lane (but not Kitlas) walked to Markzitsers nearby apartment to allow Lane to use the bathroom. While at the apartment, Markzitser drank some Vodka and Itaev called his mother on Markzitsers telephone. No one tried to kiss or touch Lane or discussed sex. When the three then went out to buy more alcohol, Lane left her backpack inside, thinking they would return shortly.

On the street Markzitser, Itaev, and Lane met Kitlas, who kissed Lane. Markzitser returned to his apartment, leaving the trio together on the sidewalk. At some point, Itaev told Lane that Markzitser was basically a dirty old man who was sort of a pervert. Itaev suggested that we knock [Markzitser] out, or that [Kitlas] knock [Markzitser] out so we could stay in his apartment, and that they take over [Markzitser]s payments for the apartment. Itaev told Kitlas, You dont have the balls to do it. Leaving Itaev and Lane on the sidewalk, Kitlas went to Markzitsers apartment to retrieve Lanes backpack.

About 10 minutes later, when Kitlas had not returned, Lane went to the apartment to look for him. She found the front security door open and the interior door ajar. She walked inside and saw Kitlas standing next to Markzitser, who was lying face down on the floor, hog-tied with telephone cords, and breathing heavily. Lane scolded Kitlas for doing something stupid, grabbed her backpack, and left. Meeting Itaev where she had left him, she told him what Kitlas had done. Itaev then walked to the apartment alone but returned in about 10 minutes and told Lane that Kitlas had killed Markzitser or that Markzitser had stopped breathing. Itaev was nervous and said that he and Lane were innocent and Kitlas was responsible. About 10 minutes later, Kitlas returned, carrying a computer case he had taken from the apartment and wearing a jacket Lane had never seen before. The trio walked to a convenience store where Itaev called someone.

Itaevs uncle Gary testified that early on the morning of June 8, Itaev called him reporting that someone had been murdered and he needed help. When Gary picked up Itaev, Iteav stated that Kitlas and Lane had killed a man who had offered to let the couple sleep in the victims apartment in exchange for having sex with Lane. At this point in Itaevs narrative Kitlas walked up to the car. Itaev told Gary that Kitlas was the killer and to let him in so they did not lose him. The three drove to a convenience store where Itaev and Kitlas got out of the car to join Lane. Gary drove off saying he would find a place for them to stay. After telephoning an attorney, Gary returned, picked up the trio, and told them he would lodge them in a hotel for the night and pick them up in the morning. (Garys and Itaevs plan was to send police to the hotel to detain or arrest Kitlas and Lane.) On the way to the motel, Itaev asked Kitlas, Did you kill the guy? Kitlas responded, Cool down. Cool down. Thats okay. Yes, I did. When Itaev asked why, Kitlas replied, Chill out. Chill out.[] Its okay. Its already over. Thats what I do for a living. Kitlas also said, Dont worry. This is not my first time. I already did that 74 times. Thats what I do for a living. Gary described Kitlas as calm, and Itaev as agitated, during this conversation.

At the motel, Gary rented a room in his name alone using his credit card, and gave Kitlas the room key. Kitlas, Lane, and Itaev went to the room. Itaev left after about 10 minutes.

Lane testified that while Itaev was in the room, he suggested that they return to Markzitsers apartment and burn it so the body would not be found. Lane replied that the scheme would fail because forensic science would disclose that the fire was intentionally set and a body was present. Kitlas, who was laughing and gloating, showed Lane some watches and cigarettes and said that Lane didnt think that he had the balls to do it. After Itaev left, Kitlas and Lane went to sleep.

Early on the morning of June 8, an attorney telephoned a sheriffs deputy and, after a brief conversation, put Itaev on the line. Itaev told the deputy that Kitlas and Lane had killed a man who, before his death, had told Itaev that he liked Lane. Itaev told the deputy that he and Gary had put Kitlas and Lane up in a motel room so the authorities could find them.

Deputies responded to the motel where they met with Gary and Itaev. Itaev told the deputies that Kitlas and Lane had murdered and robbed Markzitser. Itaev claimed that Kitlas learned that Markzitser had tried to kiss Lane and may have become jealous of Markzitser. Itaev said he, Kitlas, and Lane were staying at the motel in a room Gary had rented for them. Both Gary and Itaev gave the deputies permission to enter the room. A deputy confirmed with the motel clerk that Gary had rented the room and the deputy obtained the key. Using the key to enter the room, the deputies found Kitlas and Lane sleeping and saw watches, a set of keys, and a Russian birth certificate in plain view on the floor. Kitlas and Lane were detained while deputies searched Markzitsers apartment and discovered his body. Kitlas and Lane were then arrested.

Two deputies interviewed Kitlas after he waived his Miranda rights. (Miranda v. Arizona (1966) 384 U.S. 436.) After initially claiming that he only took items from Markzitsers apartment at Itaevs invitation and had no involvement in the murder, Kitlas admitted that he killed Markzitser. Kitlas explained that when Itaev and Lane returned from their first visit to the apartment, Itaev suggested that Kitlas knock [Markzitser] out . . . [a]nd then tie him up[] so the trio could take everything valuable out of the house and take over the apartment, take over the payments, take over rent, take over everything. Itaev told Kitlas that he wanted to see if [Kitlas] had the balls to do it. Kitlas claimed that Itaev hinted that if Kitlas refused, Itaev would harm Lane. Kitlas went to the apartment alone, obtained entry under the ruse of retrieving Lanes backpack, and, after he did so, put [Markzitser] in a headlock and he fell down[,] hit his throat on a table, and Kitlas heard it crack. But [Kitlas] did just like [Itaev] told me to and . . . tied his hands behind his back. Kitlas also tied a cord around Markzitsers neck. Lane entered the apartment, saw [Kitlas] tying [Markzitser] up[,] and left. Kitlas claimed that Itaev then entered the apartment, said to put Markzitser on the bed, took some items, and left. Kitlas complied, but claimed he thought Markzitser was only asleep and that he intended to knock Markzitser out, not to kill him. Kitlas took the jacket, watches, and birth certificate and returned to Lane and Itaev. Gary arrived and picked them up. On the way to the motel, Kitlas told [Itaev] that [he] did it. Itaev replied, I never told you to do that. Kitlas did not reply. Gary rented the room for them to cool off for the night. Itaev spent a few minutes with Kitlas and Lane in the motel room, suggested that they burn Markzitsers apartment, then left. Kitlas did not claim that either Lane or Itaev reported that Markzitser made any sexual advances towards Lane, nor did Kitlas claim he was angry before or during the killing, which he explained was motivated only by fear that Itaev would harm Lane if Kitlas failed to carry out the attack.

The court instructed the jury regarding first degree murder under the felony-murder theory, with burglary and robbery as the underlying felonies, and second degree murder as an alternative lesser-included crime. The court refused Kitlas request that it instruct the jury regarding heat-of-passion voluntary manslaughter, finding that there was no substantial evidence of that crime. The jury acquitted Kitlas of first degree murder and convicted him of second degree murder, residential robbery, and residential burglary.

DISCUSSION

I. The Court Properly Denied Kitlas Motion to
Suppress Evidence.

At the preliminary hearing, Kitlas moved to suppress physical evidence seized from the motel room where he and Lane were arrested, contending that the deputies illegally entered the room without a warrant or a valid justification for searching without a warrant. ( 1538.5.) Kitlas also contended that his post-arrest statement made several hours after his arrest should be suppressed as fruit of that illegal search. In addition to disputing Kitlas arguments, the prosecution argued that Kitlas lacked a sufficiently reasonable expectation of privacy in the motel room to challenge the entry and search. The magistrate heard the motion simultaneously with the preliminary hearing.

Detective Alex Gilinets testified that he was on duty early on the morning of June 8, 2004, when he was briefed that Itaev had telephoned the station and reported a possible homicide victim and the whereabouts of the possible suspects. Gilinets led a group of deputies to the motel to meet with Itaev and Gary and figure out whats going on. When they met, Itaev said that Lane had told him that Kitlas had killed a man in an apartment and that Kitlas and Lane were inside a room in the motel that Gary had rented for them. Itaev and Gary explained that their plan was to allow Kitlas and Lane to use the motel room to keep them secure until the deputies arrived. Gary said he had rented the room in his name using his credit card but did not plan to use the room himself. Gary gave the deputies permission to enter the room. Itaev said that although he and Gary planned to use the room to secure Kitlas and Lane, they did not tell the suspects of their plan. Instead, Itaev told Kitlas and Lane, Lets just get a room so we can get away from here and talk about this. Itaev said the suspects had taken the victims keys, jewelry, and a Russian birth certificate. The motel clerk confirmed to Gilinets that Gary had rented the room in Garys name and that the clerk had given Kitlas a room key. The clerk showed Gilinets copies of the rent receipt and Garys drivers license and gave Gilinets a key to the room.

The deputies decided to enter the room and detain Kitlas and Lane to prevent destruction of potential evidence while other deputies tried to verify the killing. Without obtaining a warrant, the deputies knocked on the door, let themselves in with the key when they received no response, and found Kitlas and Lane sleeping and keys, jewelry, and a Russian birth certificate in plain view. They detained Kitlas and Lane but, other than a protective sweep for weapons, conducted no search. Shortly thereafter, when a deputy confirmed finding the victim dead in his apartment, the deputies arrested Kitlas and Lane. They also obtained a search warrant for the victims apartment and the motel room based on the information discovered to date.

Gary testified as a defense witness and denied giving the deputies permission to enter the room. The prosecutor agreed that when the deputies first entered the motel room, they did not have a search or arrest warrant authorizing the entry.

The magistrate denied the motion before holding Kitlas to answer, finding Garys denial of consent to search not credible and Gilinets contrary testimony credible, and also finding that the deputies did not conduct a search of the room during the initial entry and detention. The magistrate ruled that (1) Kitlas did have a sufficiently reasonable expectation of privacy in the motel room to challenge the entry and search; (2) no exigent circumstances existed which justified the entry and search; (3) Gary did not have actual authority to consent to the entry; but (4) the deputies reasonably believed that Gary had valid authority to consent, and thus that their entry was valid on that ground.

Thereafter, Kitlas moved to set aside the Information ( 995) on the ground that the magistrate erred in denying the suppression motion. Pursuant to section 1538.5, subdivision (i) and People v. Galindo (1991) 229 Cal.App.3d 1529, 1533-1534, the parties agreed that no new evidence would be presented on the motion, which the court would review based on the evidence produced at the preliminary hearing, accepting the magistrates factual findings if supported by substantial evidence. The court denied the motion, ruling that Gary had actual authority to consent to the search.

Kitlas contends that the court should have granted his suppression motion because the deputies illegally entered the motel room where he and Lane were sleeping. He argues that he had a sufficiently reasonable expectation of privacy in the room to challenge the entry and search; no exigency justified the entry; Gary lacked actual or apparent authority to consent to the entry; the evidence would not have been inevitably discovered despite the illegal entry; and his later post-arrest confession also should be suppressed as fruit of the illegal entry. We disagree. Although we agree that Kitlas had a sufficiently reasonable expectation of privacy to challenge the entry, we hold that Gary had both actual and apparent authority to consent to the search, the consent justified the entry, and thus the court properly denied the motion. Because of our holding, we do not address Kitlas related arguments.

When a magistrate or judge rules on a motion to suppress evidence under section 1538.5, he must (1) find the historical facts, (2) select the applicable rule of law, and (3) apply the latter to the former to determine whether the rule of law as applied to the established facts has or has not been violated. (People v. Alvarez (1996) 14 Cal.4th 155, 182.) As the finder of fact in a proceeding to suppress evidence [citation], the [magistrate or] court is vested with the power to judge the credibility of the witnesses, resolve any conflicts in the testimony, weigh the evidence and draw factual inferences in deciding whether a search is constitutionally unreasonable. [Citation.] Accordingly, in reviewing the instant suppression order, we consider the record in the light most favorable to [the People] as respondents since all factual conflicts must be resolved in the manner most favorable to the [magistrates or] courts disposition on the [suppression] motion. [Citation.] But while we defer to the [magistrates or] courts express and implied factual findings if they are supported by substantial evidence, we exercise our independent judgment in determining the legality of a search on the facts so found. [Citations.] (People v. Woods (1999) 21 Cal.4th 668, 673-674.) Where, as here, we review the denial of a section 995 motion which reviewed the magistrates decision to deny a suppression motion and hold the defendant to answer, we review the magistrates factual findings for substantial evidence, and review de novo the magistrates and courts legal rulings whether the search was valid. (People v. Veiga (1989) 214 Cal.App.3d 817, 820.)

Warrantless searches are presumptively unreasonable, unless the prosecution can justify the search under one of the recognized exceptions to the warrant requirement. (People v. Williams (1999) 20 Cal.4th 119, 127.) Valid consent constitutes one such exception. A valid consent to enter and search eliminates the need for either a warrant or probable cause. [Citation.] A search based upon consent is lawful if, from the facts presented to the officer, he reasonably believed the occupant of the premises had authority to, and did in fact, consent to the entry and search. [Citations.] (People v. Veiga, supra, 214 Cal.App.3d at p. 821.)

First, we agree with Kitlas and the lower courts that Kitlas had a sufficiently reasonable expectation of privacy in the motel room to challenge the deputies entry into the room. Although Gary rented the room and was the registered guest, he instructed the clerk to give Kitlas a key and told Kitlas he could occupy the room, along with Lane and Itaev. Thus, Kitlas was an invitee. Although he could not reasonably expect to exclude [Gary, Lane, or Itaev] from the room, he could reasonably expect the room to remain free from governmental intrusion. [Citation.] The fact that [Gary, Lane, or Itaev] had the right to consent to a search is a risk that [Kitlas] assumed, but should not undermine his expectation of privacy. [Citations.] To hold otherwise, would be to negate Fourth Amendment protection to any who share their dwellings with another. Based upon the facts in this record, [Kitlas] had standing. (People v. Hamilton (1985) 168 Cal.App.3d 1058, 1066 [invited guest in another persons apartment had sufficient expectation of privacy to challenge entry and search of the bedroom he was occupying where contraband was found]; 4 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Illegally Obtained Evidence, 37, pp. 652-654.) The Attorney Generals reliance on People v. Ooley (1985) 169 Cal.App.3d 197, for the proposition that such an invitee lacks a reasonable expectation of privacy is misplaced, because in Ooley, there was no evidence that the defendant, found in another familys apartment, was an invitee as opposed to an intruder. (Id. at p. 203.)

Second, we agree with the lower courts that Gary had, and the deputies reasonably believed he had, authority to consent to their entry. Based on Garys and Itaevs plan (undisclosed to Kitlas) to use the room to secure Kitlas and Lane until the authorities arrived, Kitlas argues that Kitlas and Lane were the exclusive occupants of the room, neither Gary nor Itaev were cotenants with the right to permit others to enter, and that the deputies could not reasonably believe otherwise. We disagree.

There was no evidence that Kitlas either subjectively or reasonably believed that he and Lane had exclusive use of the room. Gary rented the room in his name alone and paid the fee. Kitlas received a key only with Garys permission, and Gary at any time could have obtained another key and entered the room. Gary and Itaev never told Kitlas of their plan to use the room to secure him and Lane until the deputies arrived. On the contrary, Itaev told Kitlas that Gary rented the room so we can get away from here and talk about this. Under these circumstances, like the invitee in Hamilton, Kitlas could not reasonably expect to exclude [Gary, Lane, or Itaev] from the room . . . [and] the fact that [Gary, Lane, or Itaev] had the right to consent to a search is a risk that [Kitlas] assumed . . . . (People v. Hamilton, supra, 168 Cal.App.3d at p. 1066.) Thus, Gary had authority to permit the deputies to enter the room. (Ibid; People v. Veiga, supra, 214 Cal.App.3d at pp. 821-830 [cotenant not physically present may consent to entry absent affirmative refusal to permit entry by physically present cotenant].)

Moreover, because the deputies learned that Gary rented and paid for the room and that Itaev told Kitlas that the room was for the group to discuss their future plans, the deputies acted reasonably in relying on Garys authority to permit entry. (People v. Jenkins (2000) 22 Cal.4th 900, 977; 4 Witkin & Epstein, Cal. Criminal Law, supra, 64-67, pp. 685-691.)

II. The Court Properly Denied Kitlas Motion to
Quash the Jury Venire.

Among her many other peremptory challenges, the prosecutor excused the only two African-American jurors among the prospective jury pool. The first was a twice-divorced, childless woman from Reseda who was a community college counselor and professor (hereafter, juror one). Her former spouses were a musician and a writer. She previously had been on a jury in a civil case that reached a verdict. Her deceased father earned a law degree but never practiced, and she had extensive professional contacts with lawyers. Two of her siblings and one of their spouses were police officers. In addition to her college teaching and counseling, she was trained and worked as a victim advocate counseling victims of natural disasters and governmental oppression such as civil wars, including working with groups like Amnesty International. She thought that work would probably not prevent her from being a fair juror. She responded to the prosecutors questions about whether her work would affect her view of the police or make her more sympathetic to the victim or defendants, I dont know. I dont think so. In response to the prosecutors questions, she stated that although she was not a licensed counselor or therapist, she had completed most of the coursework for those professions 25 years earlier but decided not to pursue them because she was young and had issues I didnt want to deal with at that time.

The second African-American juror was a single, childless man, also from Reseda, who was a self-employed dancer and choreographer and had never served on a jury (hereafter, juror two). In response to the courts question whether he was claiming a personal and financial hardship that may affect his ability to serve on the jury, he stated that he had three prepaid business trips scheduled during the trials anticipated length, despite having previously postponed his jury service. When the court stated, I thought you would have made arrangements to make yourself available, he replied, I did, and some of my work actually kind of accumulate[d] through the months here, and I didnt know at the time that when I rescheduled it for today that I would be acquiring more work. He added, Im not unwilling to serve, but I . . . want[ed] you to know. He acknowledged that he had been robbed at gunpoint, never reported the crime, and was not affected by it greatly. He also reported that he had been convicted of drunk driving less than three years before and that it would not affect his acting as a juror. Although the prosecutor did not ask him any questions, at sidebar she asked the judge: I have one question. Juror . . . the one who said that he was a victim of a [robbery] at gunpoint. Did he say he did not report that to the police? The judge replied, Thats what he said.^[4]

Kitlas attorney did not object when the prosecutor used her eighth peremptory challenge to excuse juror one. When the prosecutor used her twelfth peremptory challenge to excuse juror two, Kitlas attorney made a Wheeler motion (People v. Wheeler 1978) 22 Cal.3d 258). At that point neither attorney had passed an opportunity to exercise a peremptory challenge. Kitlas attorney stated without contradiction that the prosecutor had excused the only two African-American jurors in the prospective jury pool. Kitlas attorney argued that neither of the jurors demonstrated any apparent bias and that the prosecutor excused them for no apparent reason.

The court stated that it would not require the prosecutor to explain her reasons for excusing juror one, but would do so regarding juror two. The prosecutor replied: Im bothered by the fact that he . . . was a victim of a robbery at gunpoint and did not report it to the police. I would have inquired further, but I only have one minute left for all of the jurors. [] I think for that reason alone. I asked a few questions about it, and I felt that that made him very uncomfortable. So on that basis alone I have excused him. The court denied Kitlas motion, stating: I will accept the explanation as to the exercise of the second [peremptory challenge]. Im not requiring the explanation as to the first. The court did not further explain its ruling.

Kitlas contends that the court erred in denying his motion to quash the jury venire based on the prosecutors allegedly discriminatory use of her peremptory challenges to exclude both prospective African-American jurors from the jury. He argues that the court erred in failing to require the prosecutor to give reasons for excusing juror one, and in accepting her stated reasons for excusing juror two. We disagree.

The use of peremptory challenges to remove prospective jurors because of their race or gender violates both the federal and the California Constitutions.[^[5]] [Citations.] The United States Supreme Court has set out a three-step process to be followed when a party claims that an opponent has improperly discriminated in the exercise of peremptory challenges. First, the complaining party must make out a prima facie case of invidious discrimination. Second, the party exercising the challenge must state nondiscriminatory reasons for the challenge. Third, the trial court must decide whether the complaining party has proved purposeful discrimination. [Citations.] [] By asking the prosecutor to explain the peremptory challenges, the trial court here implicitly found that defendant had made a prima facie showing of impermissible discrimination in the exercise of peremptory challenges. [Citation.] Once the trial court ruled on the credibility of the prosecutors stated reasons, the issue of whether the defense had made a prima facie showing became moot. [Citations.] (People v. Jurado (2006) 38 Cal.4th 72, 104.)

Although earlier California cases held that the complaining party had to show it was more likely than not that the other partys peremptory challenges, if unexplained, were based on impermissible group bias to meet its burden of making a prima facie case of impermissible group bias, Johnson v. California (2005) 545 U.S. 162 clarified that the complaining party need only produce evidence sufficient to raise an inference of impermissible group bias. (People v. Johnson (2006) 38 Cal.4th 1096, 1098-1099.) If the trial court finds that the complaining party has failed to show a prima facie case of discrimination and thus does not require the other party to explain its reasons, and an appellate court finds that ruling erroneous under the correct standard, however, the remedy is not reversal and a new trial, but rather a limited remand for the trial court to hold a hearing, provide the other party an opportunity to offer race neutral explanations for the challenges, and decide whether those reasons are genuine or pretexts for impermissible discrimination. If the trial court upholds the challenges, it should reinstate the judgment, and if not, it should order a new trial. (Id. at pp. 1099-1104.)

In our case, the court impliedly found Kitlas had made a sufficient prima facie case regarding juror two by requiring the prosecutor to explain that challenge. The prosecutor offered a race-neutral explanation for the challenge: the jurors being the victim of a robbery at gunpoint yet failing to report the crime to the police. The court impliedly found that explanation credible and not a pretext when it denied Kitlas motion without further explanation. We reject Kitlas argument that the court thereby erred. The prosecutor gave a valid race-neutral explanation for excusing the juror. (People v. Box (2000) 23 Cal.4th 1153, 1189.) Moreover, although the prosecutor did not question juror two, she specifically asked the court to verify his statement regarding failure to report being the victim of a crime, demonstrating that the response was important to her. Given the time limits on her ability to directly question jurors, that inquiry supports the courts implied finding that the stated reason was sincere and thus valid. (Ibid.) In addition, there was no racial issue in this case, where the victim, both defendants, and most of the primary witnesses all were Caucasian. The absence of a racial issue further supports the courts conclusion that the stated ground for excusing the juror was not a pretext for discrimination.

Kitlas also argues that because the prosecutor accepted another juror who failed to report a crime, her excusing an African-American juror on this ground implies that the stated reason for the challenge was a pretext for discrimination. We disagree. Although comparative juror analysis now appears to be proper in California as a basis for evaluating a stated reason for a peremptory challenge (People v. Lewis and Oliver (2006) 39 Cal.4th 970, 1017; 5 Witkin & Epstein, Cal. Criminal Law (2007 Supp.) Criminal Trial, 504, pp. 267-268), the two jurors were not similarly situated. The comparison juror reported that his sister, not the juror, was a domestic violence victim. Moreover, unlike the excused juror, the comparison juror had not been convicted of a crime and did not state that serving on the jury would be a financial hardship. Thus, comparative juror analysis does not aid Kitlas.

As to juror one, although the record does not contain the prosecutors reasons for excusing her, we nonetheless find the court did not err in denying Kitlas motion. [W]hen a trial court denies a Wheeler motion without finding a prima facie case of group bias the reviewing court considers the entire record of voir dire. [Citations.] As with other findings of fact, we examine the record for evidence to support the trial courts ruling. Because Wheeler motions call upon trial judges personal observations, we view their rulings with considerable deference on appeal. [Citations.] If the record suggests grounds upon which the prosecutor might reasonably have challenged the jurors in question, we affirm. [Citation.] [Citation.] (People v. Mayfield (1997) 14 Cal.4th 668, 723.)

The prosecutor questioned juror one about her training as a therapist and her work as a counselor for victims of government oppression, factors which may have suggested potential sympathy for Kitlas as a young, impoverished street person under the influence of Itaev, an older and criminally-inclined codefendant, and antipathy toward the prosecution. Those factors properly would support a peremptory challenge. (People v. Trevino (1997) 55 Cal.App.4th 396, 411; People v. Landry (1996) 49 Cal.App.4th 785, 790-791.) The courts express refusal to require the prosecutor to explain excusing juror one under these circumstances strongly suggests that the court considered the challenge so obviously proper that no inquiry was called for. Because the overall record in this case demonstrates that this peremptory challenge was for a non-discriminatory purpose, no remand is necessary to explore the reasons.

III. The Court Properly Refused to Instruct on
Heat-of-Passion Voluntary Manslaughter.

Kitlas contends the court erred in refusing his request to instruct the jury regarding heat-of-passion voluntary manslaughter. He argues sufficient evidence supported giving the instructions: Markzitser wanted to have sex with Lane, based on Itaevs statements to Gary and the discovery of the unused condom on the apartment floor, Kitlas learned of this interest and became jealous, Itaev taunted and provoked him with this information, and thus that the jury reasonably could conclude that he killed the victim while provoked into a heat of passion. He also suggests that the jurys rejection of first degree murder reinforces his contention by showing a rejection of the prosecutions trial theory. The contention lacks merit.

Sudden quarrel heat-of-passion voluntary manslaughter is a lesser included crime of murder. (People v. Manriquez (2005) 37 Cal.4th 547, 583.) The court must instruct the jury regarding a lesser included crime sua sponte if substantial evidence would support a guilty verdict of the lesser included rather than the charged crime, even if the defendant objects or the lesser included crime is inconsistent with his trial theory. (People v. Barton (1995) 12 Cal.4th 186, 194-198.) Conversely, even on request, the court has no duty to instruct on any lesser offense unless there is substantial evidence to support such instruction. [Citation.] Substantial evidence is evidence sufficient to deserve consideration by the jury, that is, evidence that a reasonable jury could find persuasive. [Citations.] [] On appeal, we review independently the question whether the trial court failed to instruct on a lesser included offense. [Citation.] (People v. Cole (2004) 33 Cal.4th 1158, 1215; People v. Manriquez, supra, 37 Cal.4th at p. 584.)

A defendant seeking to mitigate a killing from murder to heat of passion voluntary manslaughter must demonstrate heat of passion and provocation. (People v. Steele (2002) 27 Cal.4th 1230, 1252.) The heat of passion requirement for manslaughter has both an objective and a subjective component. The defendant must actually, subjectively, kill under the heat of passion. But the circumstances giving rise to the heat of passion are also viewed objectively. . . . [T]his heat of passion must be such a passion as would naturally be aroused in the mind of an ordinarily reasonable person under the given facts and circumstances, because no defendant may set up his own standard of conduct and justify or excuse himself because in fact his passions were aroused, unless further the jury believe that the facts and circumstances were sufficient to arouse the passions of the ordinarily reasonable man. (Id. at pp. 1252-1253, italics added, internal quotations and citations omitted; People v. Manriquez, supra, 37 Cal.4th at p. 584.) Moreover, the provocation which incites the killer to act in the heat of passion case must be caused by the victim or reasonably believed by the accused to have been engaged in by the decedent. [Citations.] (People v. Lujan (2001) 92 Cal.App.4th 1389, 1411-1412, italics added; People v. Manriquez, supra, 37 Cal.4th at p. 583.)

Applying these principles to our facts, the court properly refused Kitlas request. First, there was insufficient evidence that, at the time of the killing, Kitlas subjectively acted in a heat of passion. (People v. Manriquez, supra, 37 Cal.4th at p. 584; People v. Steele, supra,27 Cal.4th at pp. 1252-1253.) In his post-arrest statement, Kitlas did not claim he killed Markzitser in a heat of passion caused by jealousy or any other emotion, and made no mention of any sexual advances by the victim. Rather, Kitlas explained that he killed the victim to carry out Itaevs plan to subdue Markzitser and take over the apartment, and his only motive was fear that Itaev would harm Lane if he failed to implement Itaevs plan. Lane denied that the victim made any sexual advances. During the ride with Gary to the motel, Kitlas was calm, describing the murder as something he did for a living, circumstantially negating any inference that he killed Markzitser in a jealous rage.

Second, the only evidence that the victim made any sexual advances came from Itaevs statements that he told Kitlas of Markzitsers alleged sexual interest in Lane, which Itaev said made Kitlas jealous. Even if Itaev taunted Kitlas about Markzitsers alleged interest in Lane, such conduct cannot constitute provocation because it was insufficient to provoke a reasonable person into a heat-of-passion. (People v. Steele, supra, 27 Cal.4th at pp. 1252-1253; People v. Manriquez, supra, 37 Cal.4th at p. 584; People v. Lujan, supra, 92 Cal.App.4th at pp. 1411-1412.)

Contrary to Kitlas arguments, neither the presence of the condom on the apartment floor nor the jurys rejection of a first degree murder verdict alters our conclusion. As to the condom, there is no evidence that Kitlas knew it was there. In any event, the condoms presence demonstrates neither subjective nor objectively reasonable heat-of-passion. The jurors acquitting Kitlas of first degree murder shows only that they did not believe he committed felony murder and does not suggest that they thought he acted in a heat-of-passion or that they would have convicted him of voluntary manslaughter had they been offered that alternative. The court properly ruled that insufficient evidence existed to support instructing the jury regarding heat-of-passion voluntary manslaughter.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED.

ROTHSCHILD, J.

We concur:

VOGEL, Acting P.J.

JACKSON, J.^*

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^[1] The court utilized the dual jury system to avoid problems regarding the cross-admissibility of defendants pretrial statements implicating each other which otherwise may have required severance and duplicative successive trials. (People v. Harris (1989) 47 Cal.3d 1047, 1070-1076; see Bruton v. United States (1968) 391 U.S. 123; People v. Aranda (1965) 63 Cal.2d 518.) Neither defendant testified at trial.

^[2] Originally, Lane also was charged with the count 1 murder, but the magistrate reduced that charge against her at the end of the preliminary hearing. The first Information charged Lane only with being an accessory to the murder. ( 32, count 9.) Before trial, as part of a plea bargain, she pleaded guilty to that charge. She testified as a prosecution witness at trial.

^[3] Because they are irrelevant to the issues on appeal, we omit further facts regarding the identity theft-related charges. We also omit evidence presented in Itaevs defense heard only by his jury.

^[4] The court employed a variation of the six-pack method of jury selection in which it initially seated and questioned 24 prospective jurors. The attorneys then exercised peremptory challenges until only 11 prospective jurors remained, after which the court seated and questioned 13 additional prospective jurors. The court did much of the questioning of the prospective jurors itself, and imposed strict time limits on the attorneys questioning. The male African-American juror was part of the second group of 13 prospective jurors, and by the time the prosecutor was given a chance to question that group, she had only one minute left to question all remaining prospective jurors other than the first 24. Thus, she asked no questions of any of the second group of 13 prospective jurors, which included the male African-American juror.

^[5] Making a Wheeler motion impliedly preserves the federal constitutional claim under Batson (Batson v. Kentucky, supra, 476 U.S. 79). (People v. Alvarez (1996) 14 Cal.4th 155, 195.) An appellate court reviews a trial courts ruling on a motion under Wheeler and/or Batson for substantial evidence. [Citations.] (Id. at p. 196.)

^* (Judge of the L. A. Sup. Ct. assigned by the Chief Justice pursuant to art. VI,  6 of the Cal. Const.)