P. v. Martinez

Filed 1/29/07 P. v. Martinez CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

A jury convicted appellant Thomas Edward Martinez of forcible rape and four counts of forcible oral copulation, each enhanced by the use of a deadly weapon. He was sentenced to a total term of 56 years to life in state prison for these offenses. (See Pen. Code,^[1] 667.61, subds. (a), (c)(1), (6), (e)(4), (5), 12022.3, subd. (a); former^[2] 261, subd. (a)(2), 288a, subd. (c)(2), 667.5, subd. (c)(3), (5), 1192.7, subd. (c)(3), (5), (23), 12022, subd. (b)(1).) Martinez appeals, contending that (1) the prosecutor improperly exercised peremptory challenges during voir dire; (2) the trial court erred by admitting one victims prior consistent statements; and (3) it improperly modified an instruction on the deadly weapon use enhancement allegations. We affirm the conviction.

I. FACTS

A. Angelica M. Incident

Angelica M. and appellant Thomas Edward Martinez had been close friends since she was a child, referring to each other as cousins. At one time, she lived in the same San Leandro apartment complex where Martinez lived with his wife Ana Maria and their children. During this period, Angelica had been an unemployed methamphetamine user. Sometimes, Martinez and Angelica shared methamphetamine, but they did not have a sexual relationship. Occasionally, Martinez was physical with her, kissing her and once fondling her genitals. The fondling incident had occurred two years before December 2001Angelica did not feel comfortable about it and Martinez stopped when she told him to do so.

Angelica moved to another San Leandro apartment where she lived with her boyfriend Robert Burns. On Friday, December 21, 2001, Angelicathen 25 years oldused some methamphetamine. When a friend called her that night wanting some methamphetamine, Angelica arranged for Martinezsitting alone in his car across from the apartmentfor a ride to her friends house and back to the apartment.

Early on the morning of Saturday, December 22, 2001, Angelica was tired from using methamphetamine. She did not sleep at all that night.^[3] Burns returned to their apartment about 6:00 a.m., soon followed by Martinez. Martinez took Burns and Angelica to get Burnss car. Burns drove his car back to the apartment, dropped off Angelica and left. When Angelica entered her apartment, Martinez was in her bedroom watching pornographic videotapes.

Martinez had been in her bedroom many times before, so Angelicawho was still tireddid not give it much thought at first. After a few minutes, she saw Martinez staring at her angrily. Angelica noticed that he had a knife in his back pocket, as he often did. Martinez walked from the bedroom to the front door of the apartment, looked out the peephole and threw the dead bolt, locking them in.

By now, Angelica had become frightened. Martinez told her not to go to the door. When she ignored his instructions and tried to leave, he blocked the door with his body and again told her to stay away from the door. He asked if she was carrying any weapons. Angelica surrendered a long screwdriver that she carried for protection.

Martinez ordered Angelica to go to the bedroom. She did not want to do so, but she didhe had a knife in his pocket. In the bedroom, Martinez pulled out the four- to six-inch long bladed knife and ordered Angelica to [s]uck my dick.^[4] He unbuttoned his pants, exposed his penis and shoved her head down. He stood; she had fallen to her knees when he pushed her. Crying, Angelica begged him not to do this, reminding him that they were cousins. Martinez told her Shut up or Ill slap you. Then, he shoved her head toward his penis and put it in her mouth. Angelica was crying and scared. She let him put his penis in her mouth because he had a knife in his hand. If she did not, he feared that he would stab her.

Martinezs penis became erect. Angelica pulled back and asked him to lie down. She was scared. Angelica thought that this position would make him more vulnerable to her. Her goal was to escape and to survive the experience. Martinez lay down on the bed, still holding the knife in his hand. At some point, he put on a pair of gloveslater, Angelica could not recall what he did with either the knife or her screwdriver while he put on the gloves.^[5]

When Martinez ordered Angelica to suck his dick again, she complied again, out of fear. Angelica asked him to get rid of the knife, suggesting that she might be able to better comply with his demands if he did so. The knife made her nervousshe feared that he would stab her. Martinez threw the knife beyond his reach.

Next, Angelica asked Martinez if they could go into the living room. She was trying to position herself so she could escape. He moved into the living room, leaving the knife behind. Angelica followed him. She was too frightened to go for the knifeshe feared that before she could reach it, Martinez would overtake her and stab her.

In the living room, Martinez pulled down his pants and sat on the couch. Understanding what Martinez wanted, Angelica went to her knees facing him. She opened her mouth and Martinez put his erect penis into it a third time. The knife was in the bedroom, but Angelica still feared that he would get it and use it against her. Angelica did not know where her screwdriver was. She feared that Martinez still had access to it. If he did have the screwdriver, Angelica feared that Martinez would stab her if she did not do what he wanted. Once, she stopped orally copulating him and asked how long he wanted her to continue. Martinezs answered until [he was] finished.

At this point, Martinez ordered Angelica to disrobe. She still feared that he would hurt her with the knife or the screwdriver if she did not comply. She began to remove her pants. When Angelica saw that Martinez looked away, she ran for the front door. She was able to unlock the dead bolt, open the door and step out of the apartment, but Martinez pulled her back inside by her hair and the door closed behind them.

Screaming, Angelica began banging on a window near the door, hoping to break it and attract attention. She grabbed the window blinds; Martinez yanked her and the blinds came down with her. At this point, Martinez was wrestling with Angelica. She was lying face down on the ground with Martinez on top of her. He took her in a choke hold, his arm wrapped around her neck so tightly that she could not breathe.

Angelicas next door neighbor Roberta Moore heard a disturbance and asked Whats going on in there? Martinezstill maintaining his choke holdsaid to Angelica You crazy bitch. Now shes going to call the cops. Martinez said that if Angelica told anyone, he would kill her. Angelica believed him when he said thisif anything, she became even more frightened. Hoping that he would let go of her, she told Martinez that she would lie to the police and identify an old boyfriend as the culprit.

Martinez got up off of Angelica and she ran out the door. She did not see Moore when she fled.^[6] Angelica ran across the street to a friends house, asking to use the telephone. She was still very frightened of Martinez. She called a few friends, but was too afraid to call the police.

Eventually, Angelica saw that Martinezs car was gone. She went to see her friend and neighbor Katherine Solis, who was also a methamphetamine user.^[7] She told Solis that Martinez had raped her.^[8] Even after she felt safer with her friend, Angelica still did not call the police because Martinez had threatened to kill her if she reported the incident. Martinez knew her and her familyhe knew everything about her. Angelica was too afraid to go back to her apartment until later that day. She went with Solis, but only after the two of them had split a quarter gram of methamphetamine.

For the next few weeks, Angelica was depressedshe stayed in bed, not talking or eating. Fearful and humiliated, Angelica took methamphetamine often during this time. On February 6, 2002,^[9]Angelica suffered a nervous breakdown. That night, she went to a Castro Valley hospital. She later opined that she was under the influence of methamphetamine at the time. She was crying, very depressed and distraught. She told a nurse what had happened with Martinez although later, she could not recall the particulars of her report.

The nurse called the police. The first officer to talk with Angelica that night was Alameda County Sheriffs Deputy Jeff Andrade. He had been called to evaluate whether Angelica appeared to be a danger to herself or others. (See Welf. & Inst. Code,  5150.) He concluded that she was not. When he asked her why she was depressed, she told him that Martinez had forced her to orally copulate him. He found it difficult to get her to respond to his questions about this report because she was so depressed and disoriented. Some of her answersespecially about Martinezs weapon useseemed inconsistent. Deputy Andrade passed along the information that he received from Angelica to other deputies, along with his judgment that her report was inconsistent.

Alameda County Sheriffs Deputy Terrance Montigue took over questioning Angelica. He received a more detailed report from Angelica, who told him that Martinez had forced her to orally copulate him in December 2001. She wanted Martinez to be prosecuted. Deputy Montigue observed that Angelicas responses to his questions about Martinezs weapons use were sometimes inconsistent; that she had some difficulty remembering things; and that she sometimes stopped talking in mid-sentence and stared off into space. At one time, Angelica said that Martinez was armed with a knife and a screwdriver. In another, Angelica stated that he was armed with a knife and had taken her screwdriver. Eventually, an officer prepared a written statement which she signed.

Angelica continued using methamphetamine after she left the hospital that night. She visited a mental health facility later,^[10]still frightened that Martinez would return and harm her. She did not remain at the facility, but returned to the San Leandro apartment where Martinez had assaulted her. She continued to use methamphetamine.

On May 29, Angelica met with Alameda County Sheriffs Deputy David Dickson. She was under the influence methamphetamine at the time. She was still frightened of Martinez and wanted to know if law enforcement officials had done anything about the report she had made in February. The sheriffs office had not pursued the matter. Deputy Dicksonseeing that she was under the influenceadvised Angelica to get herself clean so that he could take a statement from her and move forward with the investigation of her complaint against Martinez.

B. Jennifer C. Incident

Meanwhile, 24-year-old Jennifer C. was living in a San Leandro apartment with her two and one-half year old son. She worked at a grocery store with her best friend Ana Maria Martinez, who had once lived in the same apartment complex. Through her friend, Jennifer came to know Ana Marias three children and her husband Thomas Edward Martinez. The Martinez family had moved from the apartment complex to a nearby house earlier that year.

On the night of June 8, Jennifer and her son were both asleep in her bed. Jennifer was dressed in a tank top and pajama pants. She woke about 12:30 a.m. when a telephone call came from the front gate of the apartment complex. Jennifer was not expecting visitors, so she did not answer it. She fell back asleep, waking again about 2:30 a.m. to the sound of someone knocking on her front door. Jennifer did not answer the door, but fell asleep again. She awoke a third time about 3:30 or 3:45 a.m. to hear another knock on her door and someone calling her name.

Jennifer looked through the peephole and saw Martinez. She opened the door, asking what he was doing there. Martinez kept repeating I fucked up. I fucked up. His voice was shaky and he spoke fast, apologizing over and over. He asked to come in so he could sober up for a while. Jennifer could tell that he was high.^[11] She advised him to go home, but Martinez did not want to do so until he was sober. Because he and Ana Maria were friends of hers, she let him in.

Martinez sat in the living room on a love seat. Jennifer sat on the couch and turned on the television. When he asked for a glass of water, she went to the kitchen and got him one. She felt uneasy sitting with him and hoped he would leave soon. Martinez told her that she did not have to stay with himhe would go home in a little while. Jennifer returned to her bedroom but was unable to sleep.

Martinez kept coming back and forth to the door of her bedroom, each time talking with Jennifer. He apologized and said that he had fucked up. He asked if she planned to tell Ana Maria that he was there. He wanted to know who was with her in her bed. Jennifer answered his questions, but kept telling him to go home.

At one point, Jennifer went to the kitchen to retrieve her purse. She saw that the living room television was still on as she returned to her bedroom. Martinez came to her bedroom again, asking for some lotion. She directed him to the bathroom where he could find some. After he returned again, he asked again if she was going to tell Ana Maria that he was there. Earlier, she had told him that she would not, but this time she told him the truth. Jennifer planned to see Ana Maria in the morning at a graduation ceremony for their friend Cristina Espinosa. She was usually very open with Ana Maria and she did not see any harm in telling her that Martinez was at her apartment.

Martinez returned to her bedroom one more time, asking her to come into the living room to talk. Hoping that he would leave soon, Jennifer went to the living room and sat on the couch.^[12] Suddenly, Martinez was standing over her with a 12-inch long serrated knife in his hand. He touched the tip of the knife to Jennifers neck and ordered her to remove her pants. Jennifer asked if he was playing with her. Does it look like Im fucking playing? he replied, ordering her again to take her pants off. Frightened that he intended to kill her, Jennifer begged Martinez not to do this. Repeatedly, he slapped her hard across her face and continued to demand that she undress. Every time she refused, he hit her again.

Jennifer asked Martinez to put the knife down. He threw it onto the love seat, a step away from where he stood over her sitting on the couch. Fearful that he would stab her or hit her again if she did not comply with his demands, Jennifer took off her pajama pants.

Smirking and looking angry, Martinez asked her if she knew how to suck dick. When Jennifer said no, he told her that she was going to learnthat she was going to orally copulate him. She tried to persuade him not to force her to do this, reminding him of her affection for his wife and children. Martinez hit her again. By this time, his belt was unbuckled, his pants were unzipped and his penis was exposed. He fondled his exposed penis, then pulled his pants down. Jennifer tried to get up from the couch, but Martinez pushed her back down.

Martinez again ordered Jennifer to orally copulate him. When Jennifer refused, he grabbed her head with both his hands and forced his penis inside her mouth. She feared that he would reach over and grab the knife at any moment. Scared and shocked, Jennifer did not cry outshe did not want to waken her son. Martinez removed his erect penis from her mouth, complaining that she wasnt doing it right. He ordered her to change her position and, over her objection, used both hands on her head to force his penis back in her mouth. Again, Jennifer feared that he would grab the knife and harm her with it if she did not comply, so she orally copulated him.

On his orders, she fondled his testicles and then fondled herself, with Martinez putting his hand on hers while Jennifer touched her vagina. He orally copulated her, putting his tongue in her vagina. Jennifer complied with each of Martinezs demands, fearful of being stabbed or hit or killed. Crying, Jennifer begged Martinez not to do these things. Are you fucking crying? Shut the fuck up, he told her. When she could not stop crying, he asked her angrily if she wanted him to get the knifeif she wanted him to cut her.

At his command, Jennifer changed position so that he approached her from behind. Martinez placed his penis in her vagina, saying You dont know how long Ive been wanting to do this to you. Jennifer felt sickshe asked him to hurry, but Martinez told her that he planned to stay inside her as long as he could. He moved back and forth inside her until he pulled out and ejaculated on her back.

When it was over, Jennifer was still crying. She asked how he could do this to hersomeone who trusted him and let him into her home. She spoke again of his family. Martinez repeatedly apologized to her and asked if she would tell anyone what had happened. Martinez told Jennifer that if she told Ana Maria, he would say that she invited him in to her house. Hoping that he would leave, Jennifer told him that she would not tell anyone.

Jennifer put her clothes back on. Martinez returned the knife to the kitchen counter. Back in the living room, his hands were shaking and he apologized again. Jennifer told him to leave. He started for the door, stopping to ask for a cigarette. She gave him one, again hoping he would leave.

When Martinez finally left the apartment, it was light outside. Jennifer locked the door behind him. After checking to be sure that her son had slept through the incident, she sat and cried, unable to believe what had happened. She removed her clothes, placing them in a plastic bag with the knife to give to police later. Jennifer did not shower, but she wiped herself with baby wipes and threw them in the garbage.

In tears, Jennifer telephoned her friend Cristina Espinosa. She was not going to attend Espinosas graduation later that morning after all. Jennifer told her that Martinez had raped her at knifepointthat she had feared he would kill her. She left a message for her friend LeShawn Jackson.

Jennifer called the grocery store where she worked to talk with her supervisor, Salvador Vela. She left a message, asking Vela to call her back and advising him that she would not be coming to work that day. When Vela called her back, she was obviously upset. Jennifer eventually told him that Martinez had come to her apartment with a knife and had raped her. Soon, Jackson called and Jennifer told him the same thing she had told Espinosa and Velathat Martinez had had a knife and had raped her.

Jennifer had not yet called the police. Jackson came to the apartment. Still crying, Jennifer recounted what had happened in more detail. She worried about the impact of this event on her friendship with Ana Maria and the Martinez children. Shortly after 9:00 a.m. on June 9, Jennifer called the police, reporting to the 911 dispatcher that Martinez had raped her earlier that morning.

Before the police arrived, Jennifer got a phone call from Ana Maria, who was expecting to attend the Espinosa graduation with her. Jennifer told Ana Maria that she was not going. Sensing that something was wrong, Ana Maria asked why. Eventually, Jennifer told Ana Maria that Martinez had raped her at knifepoint the night before. By this time, Ana Maria and Jennifer were both crying. Ana Maria was concerned about Jennifers welfare and whether someone was with her. Jennifer said that Jackson was there and the police were on their way.

During this call, Alameda County Sheriffs Deputy Ronald Kahoalii knocked on Jennifers door. Jennifer ended her call from Ana Maria. Jennifer was still crying and hysterical when Deputy Kahoalii interviewed her. She told him that Martinez had forcibly raped her and forced her to orally copulate him at knifepoint. Deputy Kahoalii took photographs to document the crime scene and to record Jennifers injuries.

A second officer, Deputy Joe Rivera, arrived later. He also took some photographs of Jennifer. Jennifer gave the knife, her clothing and baby wipes to police. She also turned over to them the glass that Martinez had used. The glass was later found to have Martinezs fingerprints on it.

While law enforcement officials were still at the apartment, Ana Maria arrived and embraced Jennifer. Ana Maria was crying, but supportive. She gave law enforcement officials her home address, a description of her husband and one of his vehicle.

Jennifer went to the hospital that afternoon to undergo a sexual assault examination. At the hospital, Jennifer told the physicians assistant who took her medical history that Martinez had sexually assaulted her at 5:00 a.m. that morning. She reported that he had slapped her and had held a knife to her neck. The assistant examined Jennifer, finding redness and abrasions consistent with nonconsensual sex. She also found some redness and tenderness on the side of Jennifers face.

After the hospital visit, Jennifer returned to her apartment, but did not want to leave her car there. She feared that Martinez would see it and come back for her. Jennifer was too afraid to stay at her apartment with her son until she knew that Martinez had been arrested.

C. Arrest and Investigation

Martinez was arrested at his home on June 11 for raping Jennifer. He was taken to a hospital to undergo a compulsory sexual assault examination. While awaiting the examination, Martinez told the uniformed Deputy Kahoalii that the results might not come back to her because [he] had sex with another girl yesterday. Martinez added that he had sex with a girl named Priscilla from Brazil and that he had sex in a San Leandro marina restaurant restroom. Martinez later asked Deputy Kahoalii, Do you think Im gonna do a lot of time for doing this?

Deputy Dickson was also at the hospital. Martinez told him Ive never raped anyone before. How much time do you think I will get for raping her? When this comment elicited no reply, Martinez said I really messed up this time. My wife is really going to leave me for doing this to her best friend.

On June 11, Deputy Dickson met with Jennifer. Distraught and despondent, she gave a tape-recorded statement about the June 8 incident. He took more photographs of her injuries. The next day, Espinosa, Vela and Jackson each gave the sheriff a tape-recorded statement of what Jennifer had told each of them about the incident.

Realizing that Martinez had been named by both women, Deputy Dickson tried to contact Angelica after he undertook the investigation of Jennifers case. He could not locate her. By July, Angelica had moved into a San Jose residential drug treatment program, where she stopped using alcohol and drugs. Once Angelica completed the program, she contacted Deputy Dickson. She met with him on October 30. Deputy Dickson observed that Angelica was clean and sober, but still very fearful of Martinez. Tearfully, she gave him a tape-recorded statement about the December 2001 incident and, after viewing a photographic lineup, identified Martinez as her assailant.

D. Criminal Proceedings

In September 2003, Martinez was charged by information with one count of forcible rape and four counts of forcible oral copulationtwo each against Angelica and Jennifer. The information also alleged enhancements for personal use of a deadly weapon in the commission of each offense. It formally alleged that Martinez had committed sexual offenses against multiple victims in the current proceeding. (See  667.61, subds. (a), (c)(1), (6), (e)(4), (5), 12022.3, subd. (a); former  261, subd. (a)(2), 288a, subd. (c)(2), 667.5, subd. (c)(3), (5), 1192.7, subd. (c)(3), (5), (23), 12022, subd. (b)(1).) He pled not guilty to these charges and denied all enhancement allegations.

In March 2004, Martinez moved to set aside the deadly weapon use enhancements and related enhancements alleged in the information, arguing that his use of the knife in each instance was so ambiguous that it would not support a deadly weapon use enhancement. (See  995.) In April 2004, the trial court denied the motion to dismiss the enhancement allegations. In June 2004, the information was amended on its face to plead correct dates and weapons.

Jury selection began on June 22, 2004, and continued over the course of seven court days. The prosecutor exercised three peremptory challenges against African-American women who were part of the venire. The trial court denied two Wheeler motions (People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler)) raised by Martinez. It also heard and denied Martinezs motion to suppress evidence of the incriminating statements he made to Deputies Kahoalii and Dickson at the hospital.

During his opening statement, defense counsel conceded that Martinez had raped Jennifer, but disputed the deadly weapon use enhancement allegations, arguing that he had not had access to the knife once the rape began. He argued to the jury that Angelicas testimony about the December 2001 incident was so inconsistent that it would not establish guilt beyond a reasonable doubt.

A tape recording of Jennifers 911 call was played for the jury. In the call, Jennifer told the dispatcher that Martinez had raped her, but she did not mention a knife. She testified that she did not recall whether Martinez was still holding the knife when she removed her pants, but that she thought that he had thrown it onto the love seat by that time. Jennifer estimated that Martinez could have reached for the knife if he stepped two or two and one-half feet away. She told the jury that she did not prevent Martinez from forcibly raping and orally copulating her because she feared that he would stab her with the knife if she did not. Espinosa, Veal and Jackson each testified, confirming that Jennifer had told them that Martinez had threatened her with a knife.

Jennifer had received a cable television bill with a charge for a movie that she had not ordered. Her television had the same kind of movie ordering system as the Martinezes television had. The bill indicated that the movie began at 4:00 a.m. on June 9. At trial, the parties stipulated that this was a pornographic film, depicting explicit sex acts including oral copulation and vaginal intercourse between adults.

Angelica also testified and identified Martinez as her assailant. She admitted that methamphetamine can make a user paranoid. She did not recall what happened to the screwdriver that she surrendered to Martinez at his request. On cross-examination, Martinez pointed out inconsistencies between Angelicas testimony at the preliminary hearing and at trial.^[13] He suggested that the methamphetamine use affected her perceptions and that the prosecution had bolstered her memory of key events to prepare her to testify at trial. Angelica admitted that she had testified in a different manner at the preliminary hearing, but at trial, she believed that Martinez had a knife in his hand at the time that his first act of oral copulation in the bedroom began. She tried to be accurate in her testimony about what happened to her. Angelica testified that she sincerely believed that the events occurred as she described them to the jury.

Angelicas neighbor Roberta Moore testified that on the morning of December 22, 2001, she heard a noise like someone being slammed against the wall. She went to the next apartment to investigate and saw Angelica leave looking very upset. A man that she later identified as Martinez left the apartment soon afterward. Katherine Solis testified that when she accompanied Angelica to the apartment after the incident, it was in a state of disarray and the blinds had been torn down.

Martinez did not testify at trial. The trial court denied his motion for acquittal. In closing argument, Martinez again conceded that he committed the assault on Jennifer, but disputed doing so at knifepoint. He also argued again that Angelicas inconsistent versions of the events of December 2001 should raise a reasonable doubt in the minds of the jurors about whether she was raped at all.

The jury deliberated for a full day before rendering its verdicts. It asked to have part of Angelicas testimonywhen she and Martinez moved from the bedroom to the living roomread back. It also asked for definitions of terms relating to consent. Ultimately, the jury found Martinez guilty on all charges and found all five deadly weapon use enhancement allegations to be true. The jury also formally found that Martinez had been convicted of committing a sexual offense against multiple victims in these proceedings. (See  667.61, subd. (e)(4), (5).)

Martinez was sentenced to 56 years in state prison. He received two indeterminate terms of 25 years to lifeone for the rape against Jennifer C. and for one count of oral copulation against Angelica M. He was also sentenced to a full consecutive determinate term of six years for one count of oral copulation against Jennifer C. He received two concurrent six-year determinate terms for the other two counts of oral copulation. (See  667.61, subds. (a), (c)(1), (6), (e)(4), (5).)

II. PEREMPTORY CHALLENGES

A. Batson/Wheeler Standard

Martinez first contends that the prosecutor improperly exercised peremptory challenges during the jury voir dire process. He argues that the prosecution engaged in purposeful discrimination against three female African-American jurors by systematically exercising peremptory challenges against them despite their ability to serve as unbiased and impartial jurors in this matter. He also challenges the trial court both for failing to grant his Wheeler motion and for providing the prosecution with reasons for challenging one of the three jurors.^[14]

A prosecutor may not use peremptory challenges to remove prospective jurors for group biasthat is, solely because they are members of an identifiable racial group. (Batson v. Kentucky (1986) 476 U.S. 79, 89 (Batson); Wheeler, supra, 22 Cal.3d at pp. 265-266, 272; see People v. Johnson (2006) 38 Cal.4th 1096, 1098.) Instead, peremptory challenges must be based on specific biason individual biases related to the peculiar facts or the particular party at trial. (Wheeler, supra, 22 Cal.3d at pp. 274, 276-277, fn. 17; People v. King (1987) 195 Cal.App.3d 923, 931; see People v. Fuentes (1991) 54 Cal.3d 707, 713.) To do otherwise violates a criminal defendants federal constitutional right to equal protection and his or her state constitutional right to be tried by a jury drawn from a representative cross-section of the community. (See Batson, supra, 476 U.S. at p. 89; Wheeler, supra, 22 Cal.3d at pp. 265-266, 272; People v. Turner (1986) 42 Cal.3d 711, 715-717; see also U.S. Const., Amend. XIV; Cal. Const., art. I, 16.)

Although there are some variations, the analysis used to detect a constitutional violation is substantially the same whether the federal equal protection right or the state jury trial right underlies the claim of error. (See People v. Alvarez (1996) 14 Cal.4th 155, 193, cert. den. sub nom. Alvarez v. California (1997) 522 U.S. 829; People v. Clair (1992) 2 Cal.4th 629, 652, cert. den. sub nom. Clair v. California (1993) 506 U.S. 1063.) Courts use a three-step process to determine whether a prosecutor used peremptory challenges in an improper manner. First, the defendant must make a prima facie case by showing that the totality of the relevant facts give rise to an inference of discriminatory purpose on the part of the prosecutor. (Johnson v. California (2005) 545 U.S. 162, 168; People v. Johnson, supra, 38 Cal.4th at p. 1099; see Miller-El v. Cockrell (2003) 537 U.S. 322, 328; Batson, supra, 476 U.S. at pp. 96-97; People v. Avila (2006) 38 Cal.4th 491, 548, petn. for cert. filed Dec. 21, 2006, No. 06-8513.) The defendant must carry the burden of producing evidence sufficient to permit the trial court to draw an inference that discrimination has occurred. (Johnson v. California, supra, 545 U.S. at p. 169; People v. Johnson, supra, 38 Cal.4th at pp. 1098-1099; People v. Avila, supra, 38 Cal.4th at p. 553.) Proof of a pattern or practice is not required because a single challenge for a discriminatory purpose is not immunized by the absence of other similar challenges. (Johnson v. California, supra, 545 U.S. at p. 169, fn. 5; People v. Avila, supra, 38 Cal.4th at p. 553.)

We begin with the presumption that the prosecutor exercised the peremptory challenge on a constitutionally permissible basis. If the defendant makes a prima facie case of discrimination, that presumption is rebutted and the burden of proof shifts to the prosecutor at the second stage to show, if possible, that the racial exclusion was not predicated on group bias. (Johnson v. California, supra, 545 U.S. at p. 168; People v. Johnson, supra, 38 Cal.4th at p. 1099; People v. Alvarez, supra, 14 Cal.4th at p. 193; People v. Clair, supra, 2 Cal.4th at p. 652.) At this step, the prosecution must offer a permissible race-neutral basis for exercising a peremptory challenge against that juror. (Johnson v. California, supra, 545 U.S. at p. 168; People v. Johnson, supra, 38 Cal.4th at p. 1099; see Miller-El v. Cockrell, supra, 537 U.S. at p. 328; Batson, supra, 476 U.S. at pp. 97-98.)

Third, the trial court must determine whether the defendant has met the ultimate burden of proving that the prosecutor engaged in purposeful discrimination. (Johnson v. California, supra, 545 U.S. at p. 168; People v. Johnson, supra, 38 Cal.4th at p. 1099; see Miller-El v. Cockrell, supra, 537 U.S. at pp. 328-329; Batson, supra, 476 U.S. at p. 98.) The trial court must determine whether the prosecutors race-neutral reasons are genuine or sham. (See People v. Fuentes, supra, 54 Cal.3d at p. 717; see also People v. Avila, supra, 38 Cal.4th at p. 541.) It must make a sincere and reasoned attempt to evaluate those reasons and to clearly express its findings. (People v. Silva (2001) 25 Cal.4th 345, 385; see People v. Jurado (2006) 38 Cal.4th 72, 104-105, cert. den. sub nom.Jurado v. California (Oct. 10, 2006, No. 06-5162) ___ U.S. ___, 127 S.Ct. 383.) Typically, this determination turns on the trial courts assessment of the credibility of the prosecutors stated reasons. (Miller-El v. Cockrell, supra, 537 U.S. at pp. 339-340; see People v. Alvarez, supra, 14 Cal.4th at pp. 196-197.) If the prosecutor cannot show an absence of purposeful discrimination, then the defendants prima facie showing becomes conclusive and the presumption of constitutionality is deemed to be rebutted. (People v. Alvarez, supra, 14 Cal.4th at p. 193; People v. Clair, supra, 2 Cal.4th at p. 652; see Wheeler, supra, 22 Cal.3d at p. 282.) If the prosecutor does establish an absence of purposeful discrimination, the presumption of constitutionality is deemed to be reinstated. (See People v. Alvarez, supra, 14 Cal.4that pp. 198-199.)

On appeal, we review a trial courts ruling on the issue of purposeful racial discrimination for substantial evidence. If the trial court made a sincere and reasoned effort to evaluate the nondiscriminatory justifications offered, then we defer to the trial courts ability to distinguish bona fide reasons from sham excuses. (People v. Avila, supra, 38 Cal.4th at p. 541.)

B. Voir Dire

1. Juror No. 3

In order to determine the issues that Martinez raises on appeal, we set out the facts as they arose at voir dire. Juror No. 3 was an African-American woman.^[15] She was asked about questionnaire answers suggesting negative contacts with law enforcement officials. In one instance during the 1970s, Oakland police were harsh with her when she was wrongly identified as a potential crime suspect. She also described an incident in which two police officers stopped her daughter while she was driving a car similar to one that a citizen had reported was involved in a shooting. Juror No. 3 said that she could be fair to both sides in this matter, despite these experiences. She would be fair to police officers who testified in this case and judge their credibility fairly. She would not hold the 1970s incident against the officers who would testify in this case.

Juror No. 3 believed that the police hide behind [their] badges and do . . . things that arent right. She opined that the police sometimes single out people like this gentlemanan apparent reference to Martinezbecause of their minority status. Despite this circumstance, she also believed that people should be held accountable for their actions. Juror No. 3 also believed that it was unfair that minority crack cocaine dealers were prosecuted more often and punished more severely than White dealers selling powder cocaine. She also opined that the Three Strikes law was too harshly applied against those whose third strike was a less serious, property crime. When the trial court pointed out that this was not a drug case or a three strikes case, Juror No. 3 stated that her views on these matters would not have any bearing on her ability to sit as a juror in Martinezs case. The prosecutor exercised his second peremptory challenge against Juror No. 3.

2. Juror No. 34

Juror No. 34 was an African-American woman. She believed, based on her general experience, that law enforcement officials tend to stereotype people. She observed the police stop, question, and search people at random in the Bayview/Hunters Point neighborhood where she grew up. She did not like this practice. She believed that she could evaluate the testimony of law enforcement fairly and without bias.

Juror No. 34 found the criminal justice system to be ineffective, citing her belief that some serious criminals received light sentences while others who committed less serious offenses received longer sentences. Sometimes, this was the result of witnesses who were afraid to testify, but sometimes the laws play into it[,] too. She could set aside those beliefs and judge the facts of this particular case.

Juror No. 34 considered herself a very emotional person who might respond emotionally to the events recounted at trial. She would do [her] very best to review the evidence in a dispassionate mannernot to let her emotions control her logic. She believed that people should be held accountable for their actions. If the prosecutor proved the case against Martinez beyond a reasonable doubt, she would vote guilty. The prosecutor exercised a peremptory challenge against Juror No. 34.

3. First Wheeler Motion

Martinez raised a Wheeler motion after the prosecution challenged Jurors Nos. 3 and 34both African-American females. The trial court heard the motion in chambers. At that point, the only two African-Americans that had been questioned had been challenged by the prosecution and there was only one other African-American woman left in the jury pool.

Arguing his motion, Martinez characterized Juror No. 3 as a jovial woman who laughed a lot. She had some issues about a police incident, but blamed a third party rather than the police for the misidentification. Martinez concluded that Juror No. 3 had put this issue behind her, so that there was no reason to challenge her other than her race.

Martinez argued that the prosecution had no proper grounds to challenge Juror No. 34. He noted that Juror No. 34 had stated on her juror questionnaire that she had an uncle who had been convicted and served his sentence. She did not have a problem with that. As a teenager, she had a boyfriend who was sometimes violent to her. She believed that the Three Strikes law should be enforced depending on the crime committed. Juror No. 34 stated that sometimes the guilty go free and innocent people go to jail. She thought that some murderers received a lighter sentence than one convicted of a drug offense. Martinez argued that Juror No. 34 was emphatic when she said that her prior experience with law enforcement officials would not make it difficult to judge this crime. He found her to be a law and order person; a juror who was open rather than hostile in her responses to counsel; and someone that he saw no reason to challenge.

The trial court invited the prosecutor to respond to Martinezs comments. Instead, the prosecutor implicitly urged the trial court to back up a step, arguing that Martinez had not made a prima facie case under Wheeler. Heasked the trial court to rule on that issue before proceeding to the second step of the analysis when he would offer reasons in response to the motion. The trial court correctly interpreted the prosecutors comments as a request for a ruling on whether Martinez had stated a prima facie case under Wheeler. However, it implied that it had already found a prima facie case by seeming to move on to the second step. In its comments, the trial court stated inter alia its recollection that Juror No. 3 had recounted two incidents prompting her to believe that she and her daughter were treated unfairly by police because of their race. The trial court opined that while she did not find this circumstance to justify a challenge for cause, that it might be sufficient reason for the People to have exercised a peremptory challenge against Juror No. 3. The trial court did not offer any analysis of whether a peremptory challenge against Juror No. 34 might be warranted, although it stated that it did not find ground to challenge her for cause. It then stated that it found that Martinez had made a prima facie showing such that the prosecutor should respond to Martinezs assertions.

The prosecutor was still at the first step of the Wheeler analysis, disputing whether removing all African-American jurors from the jury would constitute a prima facie showing under Wheeler. He argued that if he had legitimate reasons to remove all African-American jurors from a panel and exercised peremptory challenges against all of them on those reasons, this would not support a finding of a prima facie case. The trial court explained that it interpreted the prosecutors initial reluctance to respond as a request for a ruling on whether Martinez had shown a prima facie case. It intended its comments to invite the prosecutor to argue whether or not a prima facie case was made about the challenge to Juror No. 34.

The trial court then stated: I understand the . . . peremptory [challenge of Juror No. 3] . . . . [] . . . [] With respect to [Juror No. 34,] you can exercise [a] peremptory challenge in this case. Of course we have one African-American peremptory challenge that Im not quite sure the ground. If you want to argue that that one is not sufficient showing of prima facie case, thats fine. In context, it appears that the trial court may have found that either a prima facie case had been established as to Juror No. 3 or that the trial court understood why the prosecutor might have properly exercised its peremptory challenge against Juror No. 3. In any event, the trial court permitted the prosecutor to argue whether or not Martinez established a prima facie showing about Juror No. 34.

The prosecutor expressed a respectful disagreement with the trial courts ruling that Martinez had made a prima facie showing, arguing that Martinez did not even come close to doing so. Still, he indicated that he was prepared to state reasons why both of these jurors were excused. Before he did so, he wanted to go back to the courtroom to get Juror No. 3s questionnaire. [T]here are some points in addition to what the Court has brought out about Juror No. 3 that the prosecutor found. Twice, the court urged the prosecutor to focus on Juror No. 34 instead.

The prosecutor noted that during voir dire, Juror No. 34 had characterized herself as a very emotional person. He recalled that during voir dire, she had observed that police treated people in an inappropriate, stereotypical manner while she was growing up in Hunters Point. The answers she gave the prosecutor led him to suspect that she based this determination on information she obtained from others, rather than on her personal experience.^[16] He opined that she had a deeply embedded bias against police.

The prosecutor noted that Juror No. 34s uncle had been convicted of a drug offense and that she had visited him at San Francisco County jail. He also expressed a concern about her ability to assess circumstantial evidence. Some misspellings in her written responses led him to conclude that she was not very educated. He also questioned the logic forming the basis of Juror No. 34s bias against the police. The prosecutor recalled that Juror No. 34 found the criminal justice system to be ineffective, leading him to suspect that she had a deeply embedded distrust of that system. His case depended on the testimony of several police officershe was wary of a juror who would not be able to receive that testimony in a fair and impartial manner.

The prosecutor offered to go into more detail about his reasons for challenging Juror No. 3, again stating that he had legitimate reasons to do so in addition to the one that the trial court had pointed out. He stated that these legitimate reasons were why he exercised his peremptory challenges against Jurors Nos. 3 and 34.

At this point, Martinez asked to make a brief response, which the trial court allowed. He pointed out that other jurors who were not African-American womenspecifically Jurors Nos. 4 and 46were not challenged by the prosecutor despite their negative views of police. He also noted several other potential jurorsJurors Nos. 27, 33 and a third juror^[17]remained on the jury despite being highly emotional. He reasoned that the only difference between Juror No. 34 and these other cited jurors was that she was an African-American woman and they were not.

With regard to Juror No. 3, Martinez said: Ill give him [Juror No. 3]. He disagreed with the prosecutors challenge of her, but was willing to assume for purposes of argument that she had a bias against police based on her personal reactions. But Martinez saw nothing in Juror No. 34 to prompt the same conclusion. Juror No. 46 followed a friends case through the criminal justice system, but remained on the jury. The only distinction Martinez could make between these two jurors was that one was Black and one was White.

The trial court denied the Wheeler motion. It found that the prosecutor had provided reasonable grounds for his exercise of the peremptory challenge. It did not find that the prosecutor was systematically and intentionally excusing African-American women from the juryinstead, it found a rational basis for his peremptory challenges. Regardless of whether the trial court agreed with the prosecutors assessments of the jurors, it concluded that the combination of factors that the prosecutor cited for exercising a peremptory challenge against Juror No. 34 was rational.

4. Juror No. 147

Jury selection resumed, including the questioning of a third African-American woman, Juror No. 147. Counsel sought a private conference with her to discuss her involvement with the Delancey Street Foundation. She told the court in chambers that she was a paralegal at a workers compensation firm and that she was on the foundations board of directors. Juror No. 147 actively participated in their program for 14 years but had not been doing that work there for the past 18 years. She became involved with Delancey Street as a volunteer without any history of drug abuse or incarceration. She was interested in how the program worked to help people rise above the legal system and become useful, productive citizens. Juror No. 147 lived on site next door to convicted felons while she was involved with the program. She left the program after she burned out. She liked her current work, where she got to talk with lots of peopleI love to chat.

Juror No. 147 was queried about other issues. She spoke of her sister, who had been convicted of a crime when she was young, had completed a term on probation, and had learned her lesson. She explained her opposition to applying the Three Strikes law to anyone other than violent offenders. She felt strongly about crimes against women and children and did not condone the commission of those offenses by someone involved with drugs. Juror No. 147 did not believe that her views would impair her ability to be fair and impartial in judging the evidence in this case. She believed that people should be held accountable for their actions. She also thought that some incarcerated persons were wrongly being held for crimes that they did not commit. The prosecutor exercised another peremptory challenge against Juror No. 147.

5. Second Wheeler Motion

Martinez raised another Wheeler motion, arguing that she was a model juror. The trial court found that Martinez established a prima facie case under Wheeler and asked the prosecutor for his reasons for excusing Juror No. 147. The prosecutor disputed that a prima facie case had been shown, but was prepared to state reasons for exercising a peremptory challenge against Juror No. 147. As to Juror No. 147, he told the trial court that he was uneasy about having someone who worked in labor law on the jury. In his judgment, labor lawyers were fierce advocates in a controversial type of practice. He was also uncomfortable with her experience of living with convicted felons at Delancey Street Foundation. He did not state reasons for excusing Jurors Nos. 3 and 34 at the time of the second Wheeler motion because he had already done so.

Martinez argued that Juror No. 147 was not a labor lawyer, but worked in a clerical position at a law office. Her work with Delancey Street indicated no more than an interest in community volunteer work, he told the trial court. He could not imagine why the prosecutor would challenge her, other than her race. The trial court denied the Wheeler motion, concluding that the prosecutor did not exercise his peremptory challenge against Juror No. 147 for an improper purpose. It found the prosecutors responses about his challenge to this juror to be legitimate and credible.

C. Issues on Appeal

1. Reasons for Excluding the Three Jurors

First, Martinez contends that the trial court erred by stating reasons for the prosecutions exercise of its peremptory challenge against Juror No. 3. Before the prosecutor offered any race-neutral reasons for the exercise of his peremptory challenge against Juror No. 3, the trial court suggested that the potential jurors sense that she and her daughter were unfairly treated by police might have prompted the prosecutor to do so. Twice, the prosecutor indicated that he had reasons in addition to those that the trial court cited for why he excused Juror No. 3, but the trial court asked only for reasons for the exercise of a peremptory challenge against Juror No. 34.

On appeal, Martinez argues that the prosecutor did not actually articulate a reason for excusing Juror No. 3, making the Batson/Wheeler inquiry fatally flawed. He contends that there is no assurance that the prosecutor actually relied on this reason. We disagree, finding his cited case authority to be factually distinguishable. In the cases that Martinez cites, the prosecutor did not speak at the Batson/Wheeler hearing to offer any evidence that he or she actually relied on reasons that were either expressly or impliedly stated. (See Paulino v. Castro (9th Cir. 2004) 371 F.3d 1083, 1089-1090 [no evidence that prosecutor spoke at all to offer any implied or explicit race-neutral reasons]; Riley v. Taylor (3d Cir. 2001) 277 F.3d 261, 282 [step three finding that reasons were genuine cannot be based on hypothetical reasons]; Bui v. Haley (11th Cir. 2003) 321 F.3d 1304, 1313-1316 [substituted counsels later assessment of why she would have challenged jurors are not relevant to step three analysis, because it does not demonstrate that former counsel actually relied on those reasons].) In fact, one federal appellate court has held that the second stepin which the prosecutor states a race-neutral reason for exercising a peremptory challengeis satisfied even though reasons were stated for only eight of nine challenges. The evidence in that case allowed the appellate court to infer that the prosecutor had a race-neutral reason for exercising the ninth peremptory challenge. (See id. at p. 1317.)

In this matter, the prosecutor endorsed the reason that the trial court suggested, while also offering to cite other reasons in support of this exercise of its peremptory challenge. As the record on appeal allows us to conclude that the prosecutor indicated that the reason cited by the trial court was, in fact, one that he actually relied on, we find that the second of the three-part Batson/Wheeler procedural steps was satisfied with regard to Juror No. 3. (See Johnson v. California, supra, 545 U.S. at p. 168; People v. Fuentes, supra, 54 Cal.3d at p. 717.)

2. Sincerity of Reasons

a. First Motion

Next, Martinez contends that the trial court erred by failing to adequately scrutinize the prosecutors reasons for excluding these three jurors. He asserts that the trial court truncated this process with regard to Juror No. 3, and failed to establish any connection between the characteristics cited about Juror No. 34 and Juror No. 147 and their ability to be fair and unbiased. Martinez urges us to conclude, as he does, that the jurors would appear to favor the prosecution rather than the defense, suggesting that the prosecutors reasons were shams. He argues that the prosecution exercised peremptory challenges against Jurors Nos. 3, 34 and 147 because they were African-American women, not because of the reasons stated. Thus, he reasons that the trial court erred in denying his Wheeler motion.

Our reading of the record belies this claim of error. As to Juror No. 3 and Juror No. 34, the trial court denied Martinezs first Wheeler motion after making specific findings that the prosecutor was not systematically and intentionally excusing both African-American women from the jury but exercised his peremptory challenges on a rational basis. The purpose of the trial courts inquiry at this stage was to determine whether the prosecutors race-neutral reasons were genuine. (See People v. Fuentes, supra, 54 Cal.3d at p. 717.) The trial court necessarily found that they were. Even a brief reference to the prosecutors reasons and the trial courts own observations of the challenged jurors can constitute a sincere and reasoned evaluation of the credibility of the prosecutors justifications. (See People v. Jackson (1996) 13 Cal.4th 1164, 1197-1198, cert. den. sub nom.Jackson v. California (1997) 520 U.S. 1216.) When the prosecutors reasons are inherently plausible and supported by the record, then the trial court need not question the prosecutor or make detailed findings. (People v. McDermott (2002) 28 Cal.4th 946, 980, cert. den. sub nom.&