APPEAL from the Superior Court of Riverside County. Stephen D. Cunnison, Judge. Affirmed. (Super.Ct.No. RIF123257).
The opinion of the court was delivered by: Ramirez, P.J.
CERTIFIED FOR PUBLICATION
A jury convicted defendant of committing lewd and lascivious acts on a minor (Pen. Code, § 288, subd. (a)).*fn1 He was granted probation. He appeals, claiming the trial court erroneously denied his Wheeler/Batson*fn2 challenge to the prosecutor‟s use of peremptories. We disagree and affirm. The facts surrounding defendant‟s conviction are irrelevant to this appeal.
The prosecutor exercised his first peremptory challenge against a Hispanic prospective juror. He exercised his second against an African-American prospective juror. His third was against a prospective juror defense counsel asserted was Latino, based only on his accent.*fn3 The trial court later concluded that his accent was not that of a Hispanic, but of someone from the south, with which defense counsel appeared to agree. The court said it had no idea what this person‟s ethnicity was and defense counsel failed to make any assertion in response.*fn4 The prosecution‟s fourth peremptory was exercised against a person who the trial court guessed, based on her name only,*fn5 was southeast Asian.*fn6 After this, defense counsel challenged the prosecutor‟s use of peremptories under Wheeler/Batson, claiming all four had been used against "people of color." Counsel added that none of these prospective jurors said anything "that would indicate that they couldn‟t be fair to the People."
The trial court denied the challenge, finding, "I don‟t think that comprises a cognizable group[.]"*fn7 The court did not contradict the prosecutor when he then said that the court had denied the challenge because the defense had not made out a prima facie case of prohibited discrimination. During the hearing on the motion for a new trial, which was based in part on this ruling, the trial court elaborated on its reasons for the denial thusly, ""[P]eople of color‟ is not really a cognizable group . . . and that‟s why I did not invite the district attorney to go to step two to justify his . . . peremptory challenges." After defense counsel agreed with the court that "people of color" was not a cognizable group and the defense‟s use of it was a "poor choice of words[,]" he asserted that during the discussion of the Wheeler/Batson challenge, "it was agreed" that one African-American, one Hispanic and one southeast Asian were removed and each of these belonged to a cognizable group. The trial court then said, "And you have one peremptory challenge as to each cognizable group. It doesn‟t seem to me that that makes out a case for the use to exclude a cognizable group. You either look at the pattern of three and then start talking about people of color, which I don‟t think is a cognizable group[,] or you look at one and one and one. And while I don‟t disagree that the use of any peremptory challenge for a discriminatory reason . . . runs afoul of Wheeler, it‟s hard for me to believe that you can establish the foundation for that argument where you have only a single challenge as to each of three different cognizable groups." After defense counsel repeated that a single misuse of a peremptory challenge violated Wheeler/Batson, so that if the prosecutor‟s use against any one of the three violated the prohibition, the challenge should have been successful, the trial court said, "[I]sn‟t the usual pattern in a Wheeler situation one in which one side . . . exercises peremptory challenges, for example, to Asians? And if there is a [peremptory] challenge to a single Asian, perhaps our sensibilities are aroused but that‟s about all. If [there are peremptory challenges] to two Asians and there are no other Asians on the jury, then perhaps we have a . . . talk about whether they‟re being used for that purpose. And if we had, for example, three Asians [excused with peremptories] and they [had been] all the Asians [that were prospective jurors], then would be the time when I would say to the prosecutor, ["] . . . now you‟ve got to explain why [you excused] three Asians.[‟] [¶] But I . . . don‟t think I‟ve ever heard of a situation in which . . . the first step of Wheeler is invoked by the use of a single peremptory challenge. It‟s just hard for me to concede how that raises a suspicion that the . . . challenge is being used discriminatorily." Defense counsel asserted that making a prima facie showing of discriminatory intent could be based not only on a prosecutor excusing more than one member of a cognizable group, but on excusing one member who appears, on the surface, to be an appropriate candidate for the jury. The trial court denied the motion without further comment.
Defendant begins his attack on the trial court‟s denial of his Wheeler/Batson motion by asserting that that court erred as a matter of law in concluding that all minority members could not be combined to create a single cognizable group. In support, he cites five federal court decisions: Green v. Travis (2d Cir. 2005) 414 F.3d 288 (Green), Fernandez v. Roe (9th Cir. 2002) 286 F.3d 1073 (Fernandez), Kesser v. Cambra (9th Cir. 2006) 465 F.3d 351 (Kesser), Montiel v. City of Los Angeles (9th Cir. 1993) 2 F.3d. 335 (Montiel) and United States v. Stephens (7th Cir. 2005) 421 F.3d 503 (Stephens). Only one of those cases, however, supports his position.
In Green, the Second Circuit interpreted Powers v. Ohio (1991) 499 U.S. 400 (Powers) as "dramaticially lessen[ing] the import of Batson‟s "cognizable racial group‟ language . . . by holding that a criminal defendant has third-party standing to raise the equal protection claims of venirepersons who have been peremptorily excluded from a . . . jury on account of purposeful racial discrimination, even if the defendant and the peremptorily excluded venirepersons were not of the same race." (Green, supra, 414 F.3d at p. 297.) This, along with the holding of Powers that the racially discriminatory peremptory challenge of one prospective juror, standing alone, violates the equal protection clause, led the Second Circuit to reject the contention that a defendant does not have to show that all venirepersons who were peremptorily excused belonged to the same "cognizable racial group." (Green, supra, at p. 297.) It added, "Powers makes clear that the only continuing relevance of Batson‟s "cognizable racial group‟ language is the requirement that a defendant alleging purposeful racial discrimination . . . must demonstrate that a peremptorily excused venireperson was challenged by reason of being a member of some "cognizable racial group.‟ . . . [O]ne venireperson cannot be excluded from a jury on account of race. A fortiori, several venirepersons of different races cannot be excluded from a jury on account of race." (Id. at p. 298.)
The other cases defendant cites do not stand for the proposition that, as a matter of law, all minority members must be combined into one group for purposes of a Wheeler/Batson motion. In Fernandez, supra, 286 F.3d 1073, the defendant first challenged the peremptory excusal of four Hispanic prospective jurors, then of both of the African-Americans on the venire, and each time, the trial court found that a prima facie case had not been made. (Id. at pp. 1075-1076.) Although during the second motion, defendant claimed that the prosecutor was excluding "people of color" (thus seeming to combine both groups), the trial court denied the motion finding there had been no prima facie showing of discrimination against African-Americans. (Id. at p. 1076.) The Ninth Circuit did not hold, as a matter of law, that members of the two groups could be combined for purposes of making a prima facie case. Rather, it performed a de novo review of the findings that no prima facie cases had been made thusly, "In applying Batson to this case, we focus first on the prospective Hispanic jurors. . . . The prosecutor struck four out of seven . . . Hispanics, . . . thus supporting an inference of discrimination. . . . Those challenges, standing alone, are enough to raise an inference of racial discrimination. [¶] Focusing next on the African-American venirepersons, we note that the prosecutor struck the only two prospective African-American jurors. Two challenges out of two venirepersons are not always enough to establish a prima facie case. Because the numbers are so small (and, hence, potentially unreliable) two such challenges, standing alone, may not be sufficient to support an inference of discrimination. [Citations.] In this case, however, the two challenges against African-Americans do not stand alone. Under Batson, we must consider "all relevant circumstances‟ surrounding the challenges. [Citation.] Even before the prosecutor struck the first African-American venireperson . . . , the prosecutor‟s prior use of peremptory challenges against the prospective Hispanic jurors had given rise to a prima facie case of racial discrimination. [¶] Given the circumstances-that the prosecutor‟s behavior had already supported an inference of discrimination and that the trial court had expressly warned him against striking any more Hispanics-the prosecutor‟s subsequent strikes against the only two African-American venirepersons also supports an inference of racial discrimination. [¶] . . . [¶] . . . Because a pattern of strikes against prospective jurors of a particular race can give rise to an inference of discrimination, see Batson, . . . and because the statistical disparities here indicate such a pattern, . . . we find that [defendant] has established a prima facie showing of discrimination under Batson." (Id. at pp. 1078-1080, italics added.)*fn8
Kesser, supra, 465 F.3d 351, does not even involve a review of the trial court‟s determination whether a prima facie case had been made. Rather, the appellate court examined the trial court‟s subsequent finding that the prosecutor had offered race-neutral reasons for peremptorily excusing certain prospective jurors.*fn9 (Id. at p. 361.) Although the Ninth Circuit concluded "[t]he racial animus behind the prosecutor‟s strikes is clear" and the excusals were "blatant race-based strikes" it went on to reverse on the basis that only one of the three Native American prospective jurors at issue had been excused for racial reasons and it conceded that there may be genuine race-neutral reasons in the record for the excusal of the other two and a women who was thought to be of Filipina ancestry. (Id. at pp. 357-358, 369, italics added.) The latter prospective juror was referred to only in the following context, "Although the evidence for a race-based strike of [the first Native American prospective juror] is overwhelming, we do not rely exclusively on her case alone. The evidence of the prosecutor‟s racial animus is most obvious with respect to [her], but it is also consistent with his treatment of the other two Native Americans and other minorities on the venire. . . . [¶] [However, b]ecause just one racial strike calls for a retrial, we will not determine here whether there was any genuine nonracial reasons for striking each of these jurors. . . . It is important to note, [at the same time,] that the prosecutor offered several pretextual explanations for these strikes, and this undercuts his credibility." (Id. at pp. 368-369.) The appellate court went on to note, "A Batson challenge to the prosecutor‟s removal of [the prospective juror of Filipina ancestry] is not before us. The trial court did not find that a prima facie case of racial or ethnic bias had been made in her case . . . . Nevertheless, at least some of [the prosecutor‟s] testimony about [her] is relevant here, because it indicates possible racial animus and so lends support to [defendant‟s] argument that the prosecutor employed racial stereotypes throughout the jury selection." (Id. at p. 369, fn. 6.)
Earlier, in Montiel, supra, 2 F.3d 335, the Ninth Circuit dealt with a challenge to the defendant‟s use of peremptories to excuse every Spanish surnamed prospective juror in the venire and another against an African-American. (Id. at p. 339.) The defendant offered explanations for the three Hispanics, which the trial court accepted. (Ibid.) The African-American was not mentioned. (Ibid.) After the defendant used another peremptory to excuse yet another African-American, the plaintiff made a second motion, which the trial court summarily denied without hearing argument or asking for an explanation from the defendant. (Ibid.) The Ninth Circuit did not order a new trial due to the trial court‟s ruling on the first challenge (to the three Hispanic prospective jurors), nor did it combine the Hispanic and African-American jurors to make a cognizable group of members of minorities for a review of the propriety of the finding that no prima facie case had been made. Rather, it held that the trial court‟s failure to hold a hearing on the second challenge (to the second excused African-American prospective juror) required a new trial. (Id. at pp. 340-341.)
Finally, in Stephens, supra, 421 F.3d 503, the Seventh Circuit merely followed Fernandez‟s use of excusals against members of a second minority group as evidence to support a prima facie showing of discrimination against members of a first minority group, as part of the "relevant circumstances" the trial court should consider in making such a determination. (Stephens, supra, at p. 513.) The Seventh Circuit did not hold that the two groups are to be combined into one large group in making a prima facie showing. In fact, it turned to the matter of the excusal of three Hispanics and one Asian only because the excusal of two African-Americans created a pattern that, because of the small number involved, was difficult to detect. (Ibid.) In examining the non-African-American minority excusals, the Seventh Circuit noted that 75 percent of the Hispanics and 100 percent of the Asians in the venire at the time had been excused. (Id. at pp. 513-514.) It noted as even more compelling than this was the fact that the prosecutor used no peremptories against Caucasians. (Id. at p. 514.)
Therefore, of the five cases defendant cites, only one, from the Second Circuit, arguably supports his assertion that the trial court here committed an error of law in not combining the three excused jurors to ...