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People v. Cox

August 10, 2010

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
JAMIE D. COX ET AL., DEFENDANTS AND APPELLANTS.



APPEAL from judgments of the Superior Court of Los Angeles County, Allen Joseph Webster, Judge. Affirmed with modifications. (Los Angeles County Super. Ct. No. TA088018).

The opinion of the court was delivered by: Turner, P. J.

CERTIFIED FOR PARTIAL PUBLICATION*fn1

I. INTRODUCTION

Defendants, Freddie Howard Jones, Shawney Jackson, and Jamie Cox, appeal from their convictions for murder (Pen. Code,*fn2 § 187, subd. (a)) and the jurors' findings that a principal personally discharged a firearm causing great bodily injury and death (§§ 12022.53, subds. (b), (c), (d)) and the murder was committed for the benefit of a criminal street gang. (§ 186.22, subd. (b)(1)(C).) Ms. Cox and Mr. Jackson were convicted of first degree murder. Mr. Jones was convicted of second degree murder. We affirm the judgments with modifications.

In the published portion of this opinion, we discuss defendants' arguments that the trial court failed to discharge the jury panel after the prosecutor exercised nine peremptory challenges against African-American jurors. We conclude the trial court complied with its constitutional obligation to engage in a sincere and reasoned effort to evaluate the nondiscriminatory justifications provided by the deputy district attorney. Thus, no constitutional error occurred during the jury selection process.

[Part II is not to be published. See post at page 9 where publication is to resume.]

II. FACTUAL BACKGROUND

We view the evidence in a light most favorable to the judgment. (Jackson v. Virginia (1979) 443 U.S. 307, 319; People v. Osband (1996) 13 Cal.4th 622, 690; Taylor v. Stainer (9th Cir. 1994) 31 F.3d 907, 908-909.) On Father's Day, June 15, 2003, Ms. Cox, a cousin, Shelnesha Cox*fn3, Mr. Jones, Mr. Jackson, Christopher Johnson, and Nakiea Larkin gathered near the Douglas apartments at Rosecrans and Culver. Ms. Larkin was dating Mr. Jones. The group was watching two women fight behind a liquor store. The Douglas apartment complex was a "stronghold" for the local gang. Thereafter, they all got into a green Lincoln Navigator that belonged to Ms. Cox's sister-in-law, Doretha Johnson. Ms. Cox was driving. Mr. Johnson was in the front passenger seat. Shelnesha sat behind the driver in the back seat next to Ms. Larkin. Mr. Jones sat in the back seat next to Ms. Larkin. Mr. Jackson was near the door of the back seat. Shelnesha expected they would just be "dippin" or riding around. Someone suggested they drive near Centennial high school. However, Ms. Cox said, "Let's go pass by Lil Jap House." Shelnesha knew that Ms. Cox and the individual identified as "Lil Jap," who was later identified as Sergio Bernal, went to school together. Shelnesha had been told Mr. Bernal used to chase Ms. Cox home from school. Ms. Cox turned onto Wilmington Avenue and then onto Paulsen Avenue and Stockwell Street. Shelnesha and Ms. Larkin knew Ms. Cox was a member of the local gang. Shelnesha "associated" with the local gang members but denied she belonged to the local gang. Shelnesha knew that Mr. Bernal was a member of a rival gang. The rival gang used to "shoot up" the apartments where the local gang resided. Ms. Larkin was not a member of the local gang. Ms. Cox, Mr. Jackson, Mr. Jones and Mr. Johnson were all members of the local gang.

As Ms. Cox drove by Mr. Bernal's house, he was outside watering the grass. Ms. Cox said, "There he go." Mr. Jackson said, "What you want me to do?" Mr. Jones and Mr. Johnson said, "We gonna milk blood." When the Navigator reached Paulsen Avenue, Mr. Jackson got out of the truck. Ms. Larkin and Shelnesha saw that Mr. Jackson had a gun. Mr. Jackson ran towards Mr. Bernal's house. Ms. Cox drove around the block. When they came around to Stockwell Street again, Shelnesha saw Mr. Jackson "sneaking up to" Mr. Bernal's house. Shelnesha saw Mr. Jackson sneak up to the fence and reach his hand over the fence. Mr. Jackson shot Mr. Bernal. Thereafter, Shelnesha and Ms. Larkin heard gunshots. Shelnesha saw Mr. Jackson attempt to fire additional shots, but his gun jammed. Ms. Cox stopped the Navigator at the corner of Stockwell Street and Paulsen Avenue. Mr. Jackson got back into the Navigator. Mr. Jackson seemed happy. Ms. Cox asked, "Did you get him?" Mr. Jackson responded, "Yes." Shelnesha believed Mr. Bernal saw the Navigator drive past because Ms. Cox had bright red hair. Ms. Cox then drove back to the Douglas apartments. Ms. Cox told all of those in the Navigator: "Don't say nothin.' Better nobody say nothin' about what happened." Ms. Larkin walked home. As she walked home, Ms. Larkin was scared and nervous. During the course of her testimony, Ms. Larkin admitted to being nervous as she testified. Ms. Larkin had been contacted by someone who told her not to come to court and testify. Shelnesha was also afraid to testify. Shelnesha feared that something would happen to her.

At approximately 4 p.m. on June 15, 2003, Jose Lizaola was standing near Paulsen Avenue and Stockwell Street. Mr. Lizaola saw a green Expedition driven by a woman circle the block two or three times. Mr. Lizaola saw what he believed to be children in the rear seat. The truck stopped. Mr. Lizaola saw an African-American man run down Stockwell Street toward the truck. That individual threw something into the back window before getting into the front passenger seat. The truck drove away. Mr. Lizaola did not hear any gunshots.

John Aguilar lived on Stockwell Street in 2003 and was Mr. Bernal's friend. Mr. Aguilar previously lived with Mr. Bernal on Stockwell Street in 2002. Mr. Aguilar knew that Mr. Bernal was a member of the rival gang. Mr. Bernal's gang nickname was, "Lil Jap." Mr. Aguilar was not a member of the rival gang. On June 15, 2003, Mr. Aguilar and three male friends passed Mr. Bernal's house on their way to buy marijuana. Mr. Bernal was not in the yard at that time. Thereafter, Mr. Aguilar drove back down Stockwell Street. Mr. Aguilar saw an African-American man running with a gun. The man ran to the side of a black gate in front of Mr. Bernal's house. The man crouched down before standing up and shooting. As Mr. Aguilar drove past, he saw a green Navigator truck parked with the door open. Mr. Aguilar turned onto Paulsen Avenue. Mr. Aguilar watched in his rear view mirror as the man who did the shooting "jumped in the truck" and was driven away. Mr. Aguilar returned to Mr. Bernal's house. Mr. Bernal had been shot. Mr. Bernal died as the result of a gunshot wound to his upper back. Although Mr. Aguilar indicated that he had seen a woman driving the green Navigator at times, he was unable to identify the driver. Mr. Aguilar was also unable to identify the individual who shot Mr. Bernal.

Los Angeles County Sheriff's Detective Elizabeth Smith arrived at the crime scene on Stockwell Street. Detective Smith learned from Mr. Aguilar that a green Navigator truck was involved in the shooting. Detective Smith went with Mr. Aguilar to several places where he had previously seen that truck. Detective Smith learned that the green Navigator had been impounded a few weeks prior. The Navigator had been released to Doretha Johnson, who resided on Peach Street, on May 9, 2003. Ms. Cox was identified as having also been associated with the same green Navigator truck. The green Navigator was also impounded on June 20, 2003. Latent fingerprints were taken from the Navigator at that time. A fingerprint found on the rear driver's side doorjam, was later matched to Mr. Jackson. A .380 expended bullet casing was found in the driveway of Mr. Bernal's house. A .25 caliber expended casing was recovered from the front yard.

Ms. Johnson was in a six-year relationship with Ms. Cox's brother, James Cox, who was a member of the local gang. During 2003, Ms. Johnson drove the green Navigator, which was registered to her former boyfriend, Terrence Smith. Ms. Johnson regularly loaned the green Navigator to Ms. Cox. Ms. Johnson worked varied hours. While testifying, Ms. Johnson could not recall being picked up by Ms. Cox from work in the green Navigator on June 15, 2003.

In 2006, Shelnesha spoke to Detective Steve Katz about the June 15, 2003 shooting. Shelnesha had been speaking to Detective Katz about another shooting. Shelnesha initially did not admit she was one of the individuals in the Navigator at the time of the shooting because she was afraid she would get in trouble. Shelnesha later told Detective Katz the truth. Shelnesha had been dating Cladis Ryals for approximately seven months before Mr. Bernal was shot. Mr. Ryals was a local gang member. Mr. Ryals was driving a blue Regal automobile on the day Mr. Bernal was shot. Mr. Ryals followed the green Navigator when it left the liquor store. However, Shelnesha did not see Mr. Ryals' car after that. Shelnesha later married Mr. Ryals and had a child with him. Mr. Ryals was subsequently convicted of attempted murder in an unrelated charge. Shelnesha had not said anything to the authorities about the shooting prior to 2006 because she was afraid she would be arrested.

Ms. Larkin was arrested in December 2006 and charged with Mr. Bernal's murder. Ms. Larkin, who was 22 years old at the time of trial, was granted immunity for her testimony. Detective Smith arrested and immediately thereafter interviewed Ms. Larkin. The interview was recorded. At the beginning of the interview, Detective Smith explained, "I told her that I was aware that she was in the green Navigator and I told her I was aware that she was with Ms. Jamie Cox, Shawney Jackson, Christopher Johnson, Shalnesha Cox and Freddie Jones." Ms. Larkin initially denied knowledge of the shooting. Detective Smith then raised the question of future custody of Ms. Larkin's child. Detective Smith testified: "I explained to her that she . . . just recently had a baby, and that I believed that the children should be raised by their parents. And I told her that I would hate for her to lose custody of that child." Ms. Larkin began to reluctantly explain what occurred. Ms. Larkin denied being afraid of Detective Smith. Ms. Larkin felt it was the right thing to do for her family to tell the truth.

Ms. Larkin told Detective Smith that Ms. Cox was driving the green Navigator on June 15, 2003. They were driving on Stockwell Street, looking for "Lil Jap." Ms. Larkin saw Mr. Bernal in his front yard on Stockwell Street. Ms. Cox said, "There he go." Thereafter, Mr. Jackson got out of the truck. Mr. Jackson had been seated in the rear seat closest to the right door. When Mr. Jackson returned to the truck, he seemed happy. After speaking to Detective Smith, Ms. Larkin was placed in a booking area with Ms. Cox. Ms. Larking testified that Ms. Cox asked the following questions, "What took me so long" and "What did you say?" Ms. Larkin responded, "No."

Los Angeles County Sheriff's Deputy Q. Rodriguez testified concerning the gangs in this case. Detective Rodriguez worked as a gang enforcement deputy. Detective Rodriguez was familiar with 53 specific targeted gangs in the Compton area. Detective Rodriguez had assisted in the service of over 200 to 300 search warrants related to gang activity. In addition to recovering evidence, the searches produced: gang paraphernalia; graffiti; photographs; firearms; and other items that revealed the neighborhood gang's culture. Oftentimes, gang members reveal their status to police officers during consensual encounters. This allows the officers to gather information about the gangs in addition to that provided by other community members.

Detective Rodriguez was familiar with the local and rival gangs. Detective Rodriguez had been assigned to investigate the local gang from the year 2000 to 2006. The local gang had approximately 200 members. The local gang congregated at the Douglas apartments, the alley across the street known as "hellhole" and "red end" where the alley dead ends. The local gang was engaged in a pattern of criminal activity as part of gang warfare in the area. The local gang committed: murder; witness intimidation; gun possession; and assault weapon possession. The rival Latino gang had approximately 300 members. The rival Latino gang also committed murders and sold narcotics and assault weapons. In 2003, both gangs had a powerful violent presence in Compton.

Detective Rodriguez had several contacts with Ms. Cox and her family. Detective Rodriguez was familiar with Ms. Cox's gang tattoos. Detective Rodriguez served search warrants at Ms. Cox's home. Ms. Cox is the daughter of the founding member of the local gang. Some female local gang members dyed their hair red to identify with the gang. The local gang members wore red clothing. Ms. Cox had her hair dyed red. Ms. Cox's numerous tattoos were representative of the local gang. Some of the most significant tattoos on Ms. Cox's body related to the murder of a 14-year-old boy who was killed by the rival Latino gang in 2001. That murder set off gang warfare, resulting in the murder of a 14-year-old girl by the local gang. Thereafter, the warfare continued. Ms. Cox was shot in 2002 by a rival gang member. Mr. Jackson was also shot in 2002 by a rival gang member.

Detective Rodriguez also knew Mr. Johnson was a local gang member. The evidence of Mr. Johnson's gang membership consisted of: tattoos; field interview cards; associates; and a pattern of gang activities. Mr. Johnson's gang moniker suggested he was good at fighting with his hands. Mr. Jones was also a member of the local gang. Mr. Jones had gang tattoos and associated with other local gang members, including James Cox. Mr. Jackson also admitted his membership in the local gang to law enforcement officers. Mr. Jackson also associated with other local gang members. Mr. Jackson was shot by the rival Latino gang on February 18, 2002. The rival gang member got out of the car and shot Mr. Jackson. Mr. Jackson was a new member of the local gang in the years 2002 and 2003. Mr. Jackson was still trying to establish himself within the gang. Usually a younger individual must prove himself to other gang members by committing a crime.

Mr. Bernal was a member of the rival Latino gang. Mr. Bernal had been convicted of gang-related shootings on at least two other occasions. Mr. Bernal had several tattoos that identified him as a rival gang member. Mark Bellows, a cousin of Ms. Cox, was a local gang member. On February 15, 2003, Mr. Bellows committed a robbery in case No. TA068989. Gary Darnell Philip was also a member of the local gang. Mr. Philip committed an attempted murder on a police officer on May 22, 2002, in case No. TA065298.

Citizens in the Compton area were reluctant to notify police of shootings because they were afraid of the local gang members. There was an aura of fear amongst the people that lived in the area. The local gang intimidated witnesses and bribed individuals when they agreed not to testify. The gang members often kept records of who was testifying and retaliated against them or their family either during trials or thereafter. Detective Rodriguez believed Ms. Larkin was in danger of retaliation for her testimony. Detective Rodriguez recommended Ms. Larkin relocate to another state.

Detective Rodriguez understood the term "milk blood" to mean, "Let's go kill somebody." A hypothetical question was posed to Detective Rodriguez. If while Ms. Cox was driving the Navigator toward Mr. Bernal's house, Mr. Johnson said, "Let's milk blood," would a young "upstart" be influenced? Detective Rodriguez believed that based on the hypothetical question, a younger or upstart individual would be encouraged to shoot the victim. When posed with a hypothetical scenario that was similar to the facts in this case, Detective Rodriguez believed that the shooting was done for the benefit of the criminal street gang and each member present at the scene of the crime. The fact that Mr. Jackson asked Ms. Cox what she wanted him to do was significant. Ms. Cox had more status in the gang. The crime of stopping the car and getting out to commit the murder sent a strong message to the community and rival gangs.

[Part III(A) is to be published.]

III. DISCUSSION

A. Prosecutor's Exercise of Peremptory Challenges

1. Factual and Procedural Background

Mr. Jones first argues that the trial court utilized an improper standard in determining whether the prosecutor's justifications for excusing African-American jurors were pretextual. Defendants argue that the prosecutor improperly exercised peremptory challenges against African-American jurors. Ms. Cox argues that the trial court performed a "perfunctory analysis" of the prosecutor's explanation for the exercise of peremptory challenges. Mr. Jackson argues that the trial court failed to scrutinize the race-neutral reasons proffered by the prosecutor.

As will be discussed in detail below, defense counsel made five separate "Wheeler motions" during the course of voir dire examination. The prosecutor made two similar motions. The trial court found a prima facie case as to each motion and allowed the parties to explain the exercise of their peremptory challenges. Thereafter, the trial court held all challenges were made on race-neutral grounds.

The voir dire examination in this case took place over six court days. The prosecutor was allowed 20 peremptory challenges. Each attorney for the four defendants was allowed 5 peremptory challenges, for a total of 20 challenges to be exercised jointly or independently. During the course of the voir dire, the prosecutor made 20 peremptory challenges. The defense exercised 18 peremptory challenges. The record does not reflect the number of African-Americans in the venire, on the final jury, or amongst the alternate jurors. Following the third defense motion made on the third day of jury selection, the trial court noted that there was one African-American juror on the panel and seven Latinos. The record reflects that the same African-American juror remained on the jury during the trial. The trial court also noted that at least one African-American juror was excused by defense counsel. But we have no record as to the number of African American jurors who ultimately were involved in deliberations and the return of the verdicts and special findings.

2. Controlling Legal Authority

Our Supreme Court has held: "Both the federal and state Constitutions prohibit any advocate's use of peremptory challenges to exclude prospective jurors based on race. (Batson[ v. Kentucky (1986)] 476 U.S. [79,] 97; Georgia v. McCollum (1992) 505 U.S. 42, 59; [People v.] Wheeler[(1978)] 22 Cal.3d [258,] 276-277.) Doing so violates both the equal protection clause of the United States Constitution and the right to trial by a jury drawn from a representative cross-section of the community under article I, section 16 of the California Constitution. (People v. Bonilla (2007) 41 Cal.4th 313, 341; People v. Avila[ (2006)] 38 Cal.4th [491,] 541.) . . . [¶] The Batson three-step inquiry is well established. First the trial court must determine whether the defendant has made a prima facie showing that the prosecutor exercised a peremptory challenge based on race. Second, if the showing is made, the burden shifts to the prosecutor to demonstrate that the challenges were exercised for a race-neutral reason. Third, the court determines whether the defendant has proven purposeful discrimination. The ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike. (Rice v. Collins (2006) 546 U.S. 333, 338.) The three-step procedure also applies to state constitutional claims. (People v. Bonilla, supra, 41 Cal.4th at p. 341; People v. Bell (2007) 40 Cal.4th 582, 596.)" (People v. Lenix (2008) 44 Cal.4th 602, 612-613; People v. Taylor (2010) 48 Cal.4th 574, 611-612; People v. Hamilton (2009) 45 Cal.4th 863, 898; People v. Lancaster (2007) 41 Cal.4th 50, 74; see also Johnson v. California (2005) 545 U.S. 162, 168; People v. Mills (2010) 48 Cal.4th 158, 173-174; People v. Cruz (2008) 44 Cal.4th 636, 655.)

We review a trial court's denial of a motion premised upon the improper use of a peremptory challenge with deference, examining only whether substantial evidence supports its conclusions. (People v. Mills, supra, 48 Cal.4th at p. 176; People v. Lenix, supra, 44 Cal.4th at p. 613; People v. Bonilla, supra, 41 Cal.4th at pp. 341-342; People v. Burgener (2003) 29 Cal.4th 833, 864.) In Lenix, our Supreme Court held: "'[T]he trial court must evaluate not only whether the prosecutor's demeanor belies a discriminatory intent, but also whether the juror's demeanor can credibly be said to have exhibited the basis for the strike attributed to the juror by the prosecutor. We have recognized that these determinations of credibility and demeanor lie "'peculiarly within a trial judge's province,'" [citations], and we have stated that "in the absence of exceptional circumstances, we would defer to [the trial court]." [Citation.]' [Citation.]" (People v. Lenix, supra, 44 Cal.4th at p. 614, quoting Hernandez v. New York (1991) 500 U.S. 352, 364-365; Snyder v. Louisiana (2008) 552 U.S. 472, 477-478; see also Thaler v. Haynes (2010) 559 U.S. ___, ___ [130 S.Ct. 1171, 1174].)

As discussed previously, we give great deference to the trial court's denial of a motion premised upon the improper use of a peremptory challenge. (People v. Lenix, supra, 44 Cal.4th at pp. 613-614 ["'We presume that a prosecutor uses peremptory challenges in a constitutional manner and give great deference to the trial court's ability to distinguish bona fide reasons from sham excuses. [Citation.]'"]; People v. Bonilla, supra, 41 Cal.4th at p. 341; People v. Avila, supra, 38 Cal.4th at p. 541.) Our Supreme Court has held: "'"All that matters is that the prosecutor's reason for exercising the peremptory challenge is sincere and legitimate, legitimate in the sense of being nondiscriminatory." [Citation.] A reason that makes no sense is nonetheless "sincere and legitimate" as long as it does not deny equal protection. [Citation.]' [Citation.]" (People v. Cruz, supra, 44 Cal.4th at p. 655, quoting People v. Reynoso (2003) 31 Cal.4th 903, 919, 924, and People v. Guerra (2006) 37 Cal.4th 1067, 1100-1101, overruled on another point in People v. Rundle (2008) 43 Cal.4th 76, 151.) And often, the best evidence of a prosecutor's intent in exercising a peremptory challenge is his or her demeanor when explaining why a prospective juror was excused. (Thaler v. Haynes, supra, 559 U.S. at p. ___ [130 S.Ct. at p. 1175]; Hernandez v. New York, supra, 500 U.S. at p. 365 (plur. opn. of Kennedy, J.).)

3. First Motion

a. Overview

The first motion was made by Mr. Higgins, counsel for Mr. Jones, after the prosecutor had exercised six peremptory challenges. Mr. Higgins, argued, "We see a pattern of the excusing of [African-Americans] from this jury." Counsel for Mr. Jackson, Ms. Trotter, joined the motion, noting there was one African-American seated on the jury and one remaining in the pool of prospective jurors. The trial court found a prima facie case and requested an explanation from the prosecutor for the challenges. Thereafter, the trial court, in denying the motion explained: "[B]ased upon what the People are saying, these people were excused for nonracial or race neutral reasons, whether the defense agrees or not." When Mr. Higgins argued that the prosecutor's reasons did not "cut it," the trial court explained: "Well, there seems to be confusion how we define these motions. The ideal juror, it seems to the court, other than those who have no proof for cause, they're not, quote, unquote, 'ideal,' they get excused for a number of reasons, but the court's standpoint, they are ideal because they were not excused for cause. There are reasons why they're excused. How counsel view witnesses and their case from the standpoint of Wheeler Johnson [Batson], we're talking about people being excused based upon a racial matter or ethnicity and [peremptory] challenges allow lawyers to excuse for any reason they want to, they can. Fat, bad breath or bad personalities, any number of reasons, as long as it's not based on race. It's allowed on both sides. And it seems to the court, based upon what the People are saying, these people were excused for nonracial or race neutral reasons, whether the defense agrees or not. It's not the issue. [¶] The issue is if the court believes they were excused for something other than race, it basically does not violate Wheeler [Batson] Johnson. The People made an argument, race neutral, whether the defense believes it or not. They're ideal, several that defense excused, we're not dealing with ideal whether the exclusion is race neutral, that's the Wheeler [Batson] Johnson standard. [¶] Also, we get into this confusion why people have been excused. If either side can document and articulate the reasons are race neutral, there's no basis to grant the motion. In this case, whether anyone agrees with it or not, the reasons are race neutral. Based on that, the court will deny the motion. [¶] I will add, I keep score, everybody who is excused. I delineate their ethnicity. At this point the People have excused six people, three Black men and three Latino males. The defense has excused two Latinos and a Middle Eastern woman and the rest white men. I keep score. I know exactly who is excused and what their race is at all times. I'm saying anytime we do a Wheeler, I have a breakdown of everyone excused. " When counsel for Mr. Jones, Mr. Higgins inquired about the trial court's reasons for making a comparison of those excluded, the trial court explained: "This is not a comparison. It has nothing to do with statistics, but this bench officer. It's imperative jurors are treated fairly by the lawyers, and the court should be apprised of everybody who is excused and their ethnicity and keep an indication, just like the defense makes notes indicating why certain people are excused. It there is, in fact, a Wheeler motion, the court feels it should do the same thing, that's the court's practice. The court has always done that. Each and every juror excused, I keep notes so if I have to deal with a Wheeler [Batson] Johnson motion. I have the same notes counsel makes. There's no law says only the lawyers keep notes. I think it makes you a better judge, and you basically have a handle on jurors and a Wheeler [Batson] Johnson motion. That's been my practice and it will continue to be my practice."

Thereafter, Ms. Trotter, counsel for Mr. Jackson, indicated the trial court should "look behind what was said in order to determine" whether there was a racial basis for the peremptory challenge. The trial court inquired, "How do you look behind what was said?" Ms. Trotter responded, "By using your common sense based on the nature of the case, the nature of the people that are excused and the nature and ethnicity of the people that are excused." The trial court answered: "The problem with using common sense is that is subjective, that basically changes from motion to motion. So the court - - that's what the lawyers, you use objective. When the court starts doing it from a common sense and a subjective standpoint, the court is violating the law and the court can be accused of playing favoritism. It says we're supposed to grant motions. I have granted motions if it was based upon race. I'm not going to use my common sense. Common sense, different people have different perceptions of what common sense means. I will never use that standard." Mr. Higgins inquired, "Is the court saying it will only grant a Wheeler if a prosecutor or a defense comes in chambers and says he excused a person because of race?" The trial court responded: "I haven't said that, nor will I make a statement like that. I made my ruling."

b. Juror No. 6300

During voir dire, the first juror in question, Juror No. 6300, an African-American, indicated that he was a 65-year-old retired truck driver with six children. He lived in "South Central" and said all of his children work. One of his sons worked for a law firm in Los Angeles. Juror No. 6300 indicated that when he lived in Alabama, he could not talk. Ms. Trotter, asked, "Now, if you're selected as a juror in this case, you're going to be required to talk. Is that going to cause you to have a problem?" Juror No. 6300 responded, "Yes." Ms. Trotter then inquired, "You don't like dealing with people and talking to other people about yourself; is that right?" Juror No. 6300 responded, "That's correct." Ms. Trotter continued: "And, you know, then since you know you would have to talk, you really couldn't be fair then in this case, could you?" Juror No. 6300 responded, "That's right." Ms. Trotter noted, "And I take it by your body language you really don't want to be here." Juror No. 6300 answered, "That's the truth." Later, the trial court inquired: "Juror [No. 6300], you don't want to be here." Juror No. 6300 answered, "No, sir." Juror No. 6300 was asked if he was selected for the jury and heard all the evidence would he change his mind if other jurors felt differently than he did. Juror No. 6300 responded: "Everyone have their own mind. No, I wouldn't." Mr. Higgins asked, "But even though you might not talk a lot, could you express your opinion to the other people back there and tell them how you felt?" Juror No. 6300 answered, "Everyone have their own mind, so you can't change nobody, so I wouldn't try to change the individuals because they have - - " Mr. Higgins interjected: "My question is could you tell them why you felt that way? You don't necessarily have to change their mind, but could you tell them why you felt that way?" Juror No. 6300 answered: "No, I wouldn't. I wouldn't think I would have to do anything like that, no, I wouldn't."

During a subsequent sidebar discussion regarding challenges for cause, Ms. Trotter indicated that she had initially considered excusing Juror No. 6300, but was "reconsidering." Ms. Trotter noted that Juror No. 6300 was late because of an emergency. Ms. Trotter presumed by his appearance that the emergency was related to his health. The trial court noted that Juror No. 6300 had been very guarded about the emergency. The prosecutor then indicated that Juror No. 6300 stated, "I am 70 . . . things are hard to remember." The prosecutor also noted that Juror No. 6300 did not want to be on the jury or deliberate and would not speak up during deliberations. The trial court denied the motion for cause. Thereafter, the prosecutor excused Juror No. 6300 as her first peremptory challenge.

Following the trial court's prima facie finding, the prosecutor explained she had dismissed Juror No. 6300 because he: stated it was hard for him to remember; said he was not allowed to talk when he lived in Alabama; "viewed himself as being someone who would not like to engage in a dialogue, should he be chosen to deliberate"; was soft spoken; said he really did not like to talk; and did not want to be there. The prosecutor added: "I don't believe he would be a fair participant when the attitude that he had put forth during the questioning of all the jurors is one that he didn't want to participate. It's too serious, and when they voice the fact they don't want to participate when questioned, then I excused him for those reasons." Our Supreme Court has held that even where a prima facie case has been shown: "The prosecutor need only identify facially valid race-neutral reasons why the prospective jurors were excused. [Citations.] The explanations need not justify a challenge for cause. [Citation.] 'Jurors may be excused based on "hunches" and even "arbitrary" exclusion is permissible, so long as the reasons are not based on impermissible group bias. [Citation.]' [Citation.]" (People v. Gutierrez (2002) 28 Cal.4th 1083, 1122; People v. Box (2000) 23 Cal.4th 1153, 1186, fn. 6, overruled on a different point in People v. Martinez (2010) 47 Cal.4th 911, 948, fn. 10; People v. Turner (1994) 8 Cal.4th 137, 165; see also Purkett v. Elem (1995) 514 U.S. 765, 767-768.) Moreover, our Supreme Court has held that a juror's unwillingness to interact with other jurors is a valid reason for a peremptory challenge. (People v. Mills, supra, 48 Cal.4th at p. 184; People v. Watson (2008) 43 Cal.4th 652, 681 [peremptory challenge supported by relevant race-neutral concerns where a juror appears too stubborn or opinionated to appropriately participate in jury deliberations]; see also People v. Yeoman (2003) 31 Cal.4th 93, 116.) It was apparent that even Ms. Trotter considered Juror No. 6300 a possible candidate for a challenge for cause based upon his responses. The expressed unwillingness of Juror No. 6300 to participate in jury deliberations constituted substantial evidence that the prosecutor exercised a permissible race-neutral reason for his excusal, thereby supporting the trial court's ruling.

c. Juror No. 6469

Juror No. 6469 was a single African-American man. Juror No. 6469 reported that he was a retired psychiatric social worker and a resident of Carson. He had previously served on four juries that reached verdicts. Juror No. 6469 had done clinical work and hospitalization assessments for Los Angeles County and managed a program that authorized "state hospital and funding." The brother of Juror No. 6469 was Judge Craig Veals. Juror No. 6469 did not discuss cases with Judge Veals because they "have a difference of opinion" over such matters. ...


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