P. v. Rodas

Filed 9/28/07 P. v. Rodas 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, Ann I. Jones, Judge. Reversed.

John D. OLoughlin, 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, Senior Assistant Attorney General, Paul M. Roadarmel, Jr., Supervising Deputy Attorney General, and Ryan M. Smith, Deputy Attorney General, for Plaintiff and Respondent.

_____________________________________

Geovani Rodas appeals from the judgment entered following a jury trial in which he was convicted of robbery with the use of a firearm. Defendant contends that the trial court erred in granting the prosecutors Wheeler^[1]motion and in denying his request for a jury instruction on willfully false statements. We find merit in the Wheeler claim and reverse on that basis without discussing the instructional issue.

BACKGROUND

Because the facts are not pertinent to our disposition, we summarize them briefly. On the evening of November 13, 2005, Natalie Benitez was selling produce from a truck parked on 8th Street and Manhattan Place in Los Angeles when a man entered the truck, pointed a gun at Benitez, and robbed her. A witness who lived near the location saw a man get out of the truck and flee with a second man. The incident was soon brought to the attention of patrol officers, who saw two men near the scene. When the men looked toward the officers, they started to run away. As the men ran, one of them discarded a gun and a wad of cash. That man, whom Benitez identified at the scene as the robber based on the clothes he was wearing, was defendant.

Jury voir dire began with a group of 18 prospective jurors. As relevant to the Wheeler motion, Prospective Juror No. 2 lived in Pasadena. Prospective Juror No. 3 said he had been robbed at gunpoint about 16 years earlier and had appeared as a witness at trial on the case. When Prospective Juror No. 3 was in court, the defendant jumped over a table and tried to get him. Prospective Juror No. 3 said he might be biased as a result of that experience. Prospective Juror No. 16 stated: Residence is in North Hollywood. Occupation, I am [in] information services. Married. Wife works in retail. [] I served once in a criminal as a juror on a criminal case, and a verdict was reached.

After the 18 prospective jurors had been questioned, defendant challenged Prospective Juror No. 3 for cause. The challenge was denied. Peremptory challenges were then undertaken. The prosecutor exercised three such challenges and defendant exercised four, including to Prospective Juror No. 3. Additional prospective jurors were then questioned.

As part of the additional questioning, Prospective Juror No. 24 stated: Live in South Pasadena. Computer service manager and married. My husband is self-employed. My son is an art designer and my daughter is a teacher. [] No jury experience. In the next round of peremptory challenges, during which each side excused three prospective jurors, defendants challenges included Prospective Jurors Nos. 16 and 24.

Upon defendants challenge to Prospective Juror No. 24, the prosecutor asked to approach the bench. The prospective jurors, including Juror No. 24, were asked to wait outside. Out of the presence of the jury panel, the prosecutor stated that she was making a Wheeler motion based on defendants peremptory challenges of three Asian-American jurors Nos. 3, 16, and 24. The court asked defense counsel for an explanation, and the following ensued.

[Deputy Alternate Public Defender] Ms. Seng: Yes. With regards to . . . the first one, Juror Number 3, Your Honor, we had made a request to challenge for cause Juror Number 3, because he had been a victim of a robbery inside of a store and we believe that his experience was too close to the facts of this case, which also concerns a robbery at gunpoint, so we challenged for cause. [] The court denied that challenge for cause. [] With regards to Juror Number 16, he indicated that his job is or occupation is information services. Its been my experience that people in those occupations have been pro-prosecution and not in favor of the defense. They tend to be quite conservative. [] With regard to . . . Juror Number 24, her area of residence is what concerns me. She indicates that she lives in South Pasadena. I am quite familiar with that area and I also believe that that area of residence in that area are pro-prosecution and would not favor the defense.

The Court: Anything in response?

[Deputy District Attorney] Ms. Shu: Your Honor, I dont believe that defense counsel actually investigated the occupational background of Number 16. What was stated on the record was that he worked in informational services. That was never clarified. We dont know what that is. No questions were asked of this juror regarding his occupation in any way, even for clarification purposes. [] Furthermore, as to Number 24, living in Pasadena being the basis, I cant see how that can be the basis when Juror Number 2 also lives in Pasadena. That juror also remains in the jury as well. [] . . . [] . . .

Ms. Seng: . . . With regards to the last comments of distinguishing Pasadena versus South Pasadena, those territories are quite different. South Pasadena is a smaller city, much more affluent residents and tend to be more conservative and are the more diverse group in Pasadena. [] And I am operating under a time constraint. I did have more questions about I believe the court had indicated that I was under that my time had been up. So I didnt get a chance to explore all the jurors in the first panel. [] . . . [] . . .

The Court: I do find a prima facie showing has been made. This is the third Asian juror excused by the prosecution [sic]. Further, other than Juror 1 [sic^[2]], I do not find the explanation either genuine or acceptable. I do not find genuine the contention that Juror Number 16, because he was information services, was unreasonably conservative. He had successfully served on a jury. They had been able to obtain a verdict. And I dont believe its at all authentic that his education or his background gives you a race justification for excusing him. [] You had a half hour. You would have had an opportunity to inquire further regarding his education, what he did with regards to information services. [] As regards Juror 23 [sic^[3]], it is not acceptable to explain an assumption based on the residence of a particular juror, specifically the place of residence, and I will get authority for you. [It] is not an acceptable race neutral justification. [] Accordingly, the Wheeler motion is granted.

Ms. Seng: I would like to state for the record with regards to the rest of the venire, there are quite a few number of Asians left in the venire. There are two or three left.

The Court: It doesnt cure the problem that Juror 24 potential Juror 24 was excused for the basis of her being Asian and no other plausible, so I will re-sit Juror 24 and continue with our jury selection. Invite Juror 24 back in the box and place the jurors back in the box.

Voir dire then continued, and a jury was ultimately sworn that included Prospective Juror No. 24.

DISCUSSION

Exercising peremptory challenges because of group bias rather than for reasons specific to the challenged prospective juror violates both the California Constitution and the United States Constitution. [Citations.] (People v. Cleveland (2004) 32 Cal.4th 704, 732.) Impermissible group bias includes bias based on the prospective jurors race. (Wheeler, supra, 22 Cal.3d at p. 276; Batson v. Kentucky (1986) 476 U.S. 79, 84 [106 S.Ct. 1712] (Batson).) The rule applies equally to the prosecution and the defense. (People v. Willis (2002) 27 Cal.4th 811, 813; Wheeler, at p. 282, fn. 29.)

The United States Supreme Court has given this explanation of the process required when a party claims that an opponent has improperly discriminated in the exercise of peremptory challenges: [O]nce the opponent of a peremptory challenge has made out a prima facie case of racial discrimination (step one), the burden of production shifts to the proponent of the strike to come forward with a race-neutral explanation (step two). If a race-neutral explanation is tendered, the trial court must then decide (step three) whether the opponent of the strike has proved purposeful racial discrimination. [Citation.] (People v. Silva (2001) 25 Cal.4th 345, 384; accord, Johnson v. California (2005) 545 U.S. 162, 168 [125 S.Ct. 2410].)

Although reviewing courts generally accord great deference to the trial courts ruling that a particular reason is genuine, [they] do so only when the trial court has made a sincere and reasoned attempt to evaluate each stated reason as applied to each challenged juror. [Citations.] (People v. Silva, supra, 25 Cal.4th at pp. 385386.) An appellate court reviews a trial courts ruling on a motion under Wheeler and/or Batson for substantial evidence. [Citation.] (People v. Alvarez (1996) 14 Cal.4th 155, 196.)

We conclude the trial courts ruling that defense counsel had exercised peremptory challenges to Prospective Jurors Nos. 16 and 24 because of group bias was not supported by substantial evidence.

A prospective jurors occupation has been recognized in California as a legitimate basis for determining that the juror would be undesirable. (See, e.g., People v. Perez (1996) 48 Cal.App.4th 1310, 1315 [no prima facie case where challenged members worked in social services or caregiving fields]; People v. Barber (1988) 200 Cal.App.3d 378, 394 [Peremptory challenges are often exercised against teachers by prosecutors on the belief they are deemed to be rather liberal]; People v. Granillo (1987) 197 Cal.App.3d 110, 120, fn. 2 [Many prosecutors believe various professional people are unacceptable because they may be too demanding or they look for certainty].) Other jurisdictions are in accord. (See, e.g., Williams v. Groose (8th Cir. 1996) 77 F.3d 259, 261 [prosecutor explained he removed jurors Lacy and Tillman because they are postal workers. This reason is race neutral]; U.S. v. Thompson (9th Cir. 1987) 827 F.2d 1254, 1260 [excluding jurors because of their profession is wholly within the prosecutors prerogative]; Johnson v. State (Ga. 1996) 470 S.E.2d 637, 639 [prospective juror was a postal worker, and postal workers, in the prosecutors experience, do not make good jurors].)

Here, defense counsel stated it had been her experience that people in occupations such as the information services position held by Prospective Juror No. 16 were quite conservative and therefore not in favor of the defense. Notwithstanding the trial courts personal belief that this occupation did not make the juror unreasonably conservative, the foregoing authority establishes that defense counsel had an acceptable, race-neutral basis for her peremptory challenge. It is of no consequence that, as the prosecutor complained, defense counsel had not actually investigated the occupational background of Number 16 or asked questions regarding his occupation, even for clarification purposes. Defense counsel had no obligation to do so. Nor was there any basis for the trial courts statement that it was not authentic that [Prospective Juror No. 16s] education or his background gives [defense counsel] a race justification for excusing him. The prospective jurors education was not disclosed during voir dire and very few background details were included. And although the trial court spoke positively about Prospective Juror No. 16s experience having previously sat on a criminal jury that reached a verdict, defense counsel may well have viewed this experience as a factor making the juror undesirable in this case.

As to Prospective Juror No. 24, although not cited by defense counsel as a reason for exercising a peremptory challenge, the prospective jurors employment as a computer service manager was likely similar to Prospective Juror No. 16s job in information services. More important, the reason cited by defense counsel for exercise of the peremptory challenge the prospective jurors residence in South Pasadena should have been accepted as race neutral. The record does not disclose whether the trial court provided the authority it promised to defense counsel for the proposition that the residence of a prospective juror is not an acceptable basis for exercising a peremptory challenge, or if it did, what that authority was. Nevertheless, People v. Huggins (2006) 38 Cal.4th 175 stands as authority to the contrary.

In Huggins, the prosecutor explained the basis of a peremptory challenge to an African-American prospective juror in a death penalty case by stating, among other reasons, that the juror was born in Berkeley and might share anti-death-penalty views the prosecutor believed to be prevalent there. (People v. Huggins, supra, 38 Cal.4th at p. 229.) The Supreme Court held, with respect to that prospective juror and another prospective juror whose car was in a dilapidated condition, it does not matter whether it was reasonable for the prosecutor to doubt the desirability of prospective jurors who were born in Berkeley or were associated with automobiles in less than pristine condition. Absent evidence that being born in Berkeley or linked to dilapidated automobiles is so closely associated with a protected group that they are surrogates for membership in the group and thus arguably impermissible [citation], the reasons are neutral for Batson-Wheeler purposes, and that is all that matters. (Id. at p. 231, fn. 15.)

Perhaps the authority to which trial court was referring is this courts opinion in People v. Turner (2001) 90 Cal.App.4th 413. If so, the reference was inapt.

In Turner, the defendant was charged with drug sales and the prosecutor exercised a peremptory challenge to an African-American potential juror who resided in Inglewood. (People v. Turner, supra, 90 Cal.App.4th at p. 418.) When asked for an explanation, the prosecutor stated that Inglewood residents may not consider drugs to be as much of a problem as others do, the prospective juror had no children, and she appeared unfriendly. (Ibid.) The trial court found the reasons to be race neutral. On appeal, we reversed, holding that [t]he population of Inglewood is, as defense counsel stressed, substantially African-American. According to data collected by the United States Census Bureau during the 2000 census, African-Americans comprise 49.9 percent of Inglewoods voting age population. While other races may comprise a bare majority of the voting age population, African-Americans so predominate that an Inglewood juror is twice as likely to be African-American as to be any other race. To state that Inglewood jurors have a different attitude toward the drug culture is just as stereotypical as the reason given in Bishop.[^[4]] Crediting past experiences with Inglewood jurors as the foundation for this view is a mere surrogate [] or prox[y] for group membership. [Citation.] (Turner, at p. 420, fn. omitted.)

South Pasadena, where Prospective Juror No. 24 lived, is not Inglewood. The 2000 United States census data, of which we have taken judicial notice, shows the voting-age Asian population of South Pasadena to be 26.1 percent (with 62.1 percent White, 15 percent Latino, and the remainder African-American and others).^[5]Thus, in contrast to the situation in People v. Turner, supra, 90 Cal.App.4th at page 420, Asian-Americans do not predominate the population of South Pasadena. In addition, defense counsel offered as a reason for her assessment that South Pasadena residents would be pro-prosecution and would not favor the defense that South Pasadena is much more affluent than Pasadena (Pasadena being the residence of Prospective Juror No. 2, to whom the prosecutor referred in arguing the Wheeler motion). The 2000 census data bears out this assessment. South Pasadena has a median household income of $67,716,^[6]well above the Pasadena median household income of $55,916.^[7] Accordingly, defense counsel provided an adequate, race-neutral reason for exercising a peremptory challenge against a prospective juror from South Pasadena.

Based on the foregoing, we conclude that the trial court erred in granting the prosecutors Wheeler motion and reseating Prospective Juror No. 24. The error requires that the judgment be reversed.

We are not aware of any case involving a defendant being forced to go to trial with a juror he sought to excuse based an erroneously granted Wheeler motion. But California courts have consistently held that [t]he failure to grant a defendant the prescribed number of peremptory challenges when the record reflects his desire to excuse a juror before whom he was tried is reversible error. [Citations.] (People v. Armendariz (1984) 37 Cal.3d 573, 584, superseded by statute on another point as stated in People v. Cottle (2006) 39 Cal.4th 246, 254.) There is no reason that a defendant should be required to demonstrate actual prejudice based on Wheeler error when there is no requirement to do so when the error involved is the failure to grant the prescribed number of peremptory challenges to the defendant. Accordingly, by parity of reasoning with Armendariz, defendants conviction in this case must be reversed.

DISPOSITION

The judgment is reversed.

NOT TO BE PUBLISHED.

MALLANO, Acting P. J.

We concur:

VOGEL, J.

JACKSON, J.^*

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^[1]People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler).

^[2]Prospective Juror No. 3.

^[3]Prospective Juror No. 24.

^[4]As explained in People v. Turner, supra, 90 Cal.App.4th at page 420, in U.S. v. Bishop (9th Cir. 1992) 959 F.2d 820, 821, the prosecutor challenged African-American prospective jurors because they lived in a predominantly low-income, black neighborhood and [were] therefore likely to believe the police pick on black people.

^[5]United States Census Bureau (as of August 14, 2007).

^[6]MuniNet Guide (as of August 14, 2007).

^[7]MuniNet Guide (as of August 14, 2007).

^*Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.