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The People v. Sergio Salinas

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT


December 14, 2010

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
SERGIO SALINAS, JR., DEFENDANT AND APPELLANT.

APPEAL from a judgment of the Superior Court of Tulare County. Joseph A. Kalashian, Judge. (Super. Ct. No. VCF214633)

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

P. v. Salinas

CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

OPINION

On May 28, 2009, a jury convicted appellant Sergio Salinas, Jr., of evading an officer with willful or wanton disregard for safety (Veh. Code, § 2800.2, subd. (a); count 1). Appellant then pleaded no contest to driving with a suspended license (id., § 14601.2, subd. (a); count 2), and admitted having served a prior prison term (Pen. Code, § 667.5, subd. (b)). Sentenced to a total of three years in prison and ordered to pay various fees and fines, he now appeals and raises various claims of error. For the reasons that follow, we will affirm.

FACTS

Late at night on August 23, 2008, California Highway Patrol (CHP) officers attempted to initiate a traffic stop on a vehicle that had red lights on its front hood and rearview mirror.*fn1 Instead of pulling over, the driver, who was subsequently identified as appellant, sped off, precipitating a pursuit in which the vehicle reached a speed of 100 miles per hour, traveled through intersections without heeding stop signs, and drove on the wrong side of the road for approximately three-quarters of a mile.

DISCUSSION

I

BATSON-WHEELERCLAIM

Appellant, who is Hispanic, challenges the trial court's denial of his two Batson-Wheeler*fn2 motions, which were brought as a result of the prosecutor's peremptory excusals of four prospective jurors who were Hispanic or at least Spanish-surnamed. Hispanics are a cognizable group for purposes of Batson-Wheeler analysis. (People v. Trevino (1985) 39 Cal.3d 667, 686, disapproved on another ground in People v. Johnson (1989) 47 Cal.3d 1194, 1221.) Spanish-surnamed prospective jurors are included in the cognizable Hispanic group, at least when no one knows at the time of the challenge whether the prospective juror is Hispanic. (People v. Davis (2009) 46 Cal.4th 539, 584; People v. Cruz (2008) 44 Cal.4th 636, 656-657; see People v. Silva (2001) 25 Cal.4th 345, 384; People v. Trevino, supra, 39 Cal.3d at p. 686.)

"The purpose of peremptory challenges is to allow a party to exclude prospective jurors who the party believes may be consciously or unconsciously biased against him or her." (People v. Jackson (1992) 10 Cal.App.4th 13, 17.) Peremptory challenges may properly be used to remove prospective jurors believed to entertain specific bias, i.e., bias regarding the particular case on trial or the parties or witnesses thereto. (Wheeler, supra, 22 Cal.3d at p. 274.) However, "'[a] prosecutor's use of peremptory challenges to strike prospective jurors on the basis of group bias -- that is, bias against "members of an identifiable group distinguished on racial, religious, ethnic, or similar grounds" -- violates the right of a criminal defendant to trial by a jury drawn from a representative cross-section of the community under article I, section 16 of the California Constitution. [Citations.] Such a practice also violates the defendant's right to equal protection under the Fourteenth Amendment to the United States Constitution. [Citations.]' [Citation.]" (People v. Bell (2007) 40 Cal.4th 582, 596; see Batson, supra, 476 U.S. at pp. 88-89; Wheeler, supra, 22 Cal.3d at pp. 276-277.)

"There is a rebuttable presumption that a peremptory challenge is being exercised properly, and the burden is on the opposing party to demonstrate impermissible discrimination. [Citations.]" (People v. Bonilla (2007) 41 Cal.4th 313, 341.)

"[¶] The United States Supreme Court has ... reaffirmed that Batson states the procedure and standard to be used by trial courts when motions challenging peremptory strikes are made. 'First, the defendant must make out a prima facie case "by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose." [Citations.] Second, once the defendant has made out a prima facie case, the "burden shifts to the State to explain adequately the racial exclusion" by offering permissible race-neutral justifications for the strikes. [Citations.] Third, "[i]f a race-neutral explanation is tendered, the trial court must then decide ... whether the opponent of the strike has proved purposeful racial discrimination." [Citation.]' [Citation.]" (People v. Avila (2006) 38 Cal.4th 491, 541, quoting Johnson v. California (2005) 545 U.S. 162, 168.)

The California Supreme Court has "endorsed the same three-part structure of proof for state constitutional claims. [Citations.]" (People v. Bell, supra, 40 Cal.4th at p. 596; Wheeler, supra, 22 Cal.3d at pp. 280-282.)

With these principles in mind, we turn to the case before us.

A. Factual Background

Prospective Jurors J.H., A.N., and F.L. were among the first 18 individuals examined during voir dire. Each prospective juror was asked to state, inter alia, his or her occupation; whether he or she had ever been involved in a criminal case or been charged with a crime, the victim of a crime, or a witness to a crime; whether he or she had any legal or medical training; whether he or she had ever been involved in law enforcement; and whether he or she had any close friends or relatives in law enforcement.

In pertinent part, F.L. related that he was a bartender, real estate agent, and student; was charged with driving under the influence (DUI) about a year earlier, but had no other criminal charges; and had cousins who were prison correctional officers, but they were not close cousins and he was not sure who they were or where they worked. A.N. related that she was a medical assistant with some medical training, and had a brother who had been convicted of a felony. J.H. related that she was a customer service assistant; had "tons of family and criminal cases," although she herself had never been involved in any criminal act; had some paralegal training; and had several friends working in corrections and as police officers.

The prosecutor excused A.N. with his first peremptory challenge. He excused J.H. with his third peremptory challenge, at which point defense counsel asked to make a motion. Outside the prospective jurors' presence, the following colloquy occurred:

"MR. RENDAHL [defense counsel]: At this point I would move to disqualify the jury panel based on the District Attorney's systematic exclusion of Hispanic jurors. They're minimal number to start with, and the two or three exclusions have been Hispanic of nature, where nothing that I could see significant about either one....

"THE COURT: I'll find a prima facie case for that. So you need to explain why you excused each of them.

"MR. MYER [prosecutor]: As to [J.H.], I believe her statement was she had tons of family in criminal cases, ... I ... felt that her response ... makes her potentially biased towards the District Attorney's office. [¶] ...

"THE COURT: I think that is a legitimate concern for the prosecution. I don't think it was a pretext to excuse her for her race or nationality. The second one was [N.]? ....

"MR. MYER: Basically, from the get-go I felt she was glaring at me personally. I don't know if it was across the table of the defendant, but I felt like it was at me. One of the things when I look [for] jurors is how they respond to me personally .... She stated that she has a brother convicted of a felony, as well as her relatively youthful age.

"THE COURT: And I think those are legitimate concerns for the prosecution. Once again, I don't think it was a pretext for challenging. So I'll deny the Wheeler motion at this point."

The prosecutor excused F.L. with his fourth peremptory challenge. The court then called to the box seven more prospective jurors, one of whom was Y.T. She related that she was a barista at a cafe and had never been involved in a criminal case. She had no prior jury service, no medical or legal training, and no friends or relatives in law enforcement.

The defense exercised its fourth peremptory challenge. The People then accepted the panel three times, only excusing Y.T. with its fifth peremptory challenge after the defense exercised its seventh challenge. Defense counsel then asked to make a motion.

Outside the presence of the jury, defense counsel stated that the prosecutor's last two challenges were to Hispanics, F.L. and Y.T. Counsel again noted the minimal number of Hispanics on the jury panel, and observed that four out of the prosecutor's five challenges had been to Hispanics. The court found a prima facie case and asked the prosecutor to explain. This dialogue ensued:

"MR. MYER: Mr. [L.], I questioned whether he's actually Hispanic, despite his last name only. He looked very Caucasian to me, number one.

"THE COURT: He did to me also, but I can't tell.

"MR. MYER: Okay. But I don't think he was Hispanic personally. So I don't think it's a proper challenge based on race.... He had been charged with a DUI as well. And I felt based on that that he could be coming with prejudice, especially towards CHP involved in a lot of DUI investigations.

"As far as Miss [T.], I ... kept her three or four times when I passed for cause on the panel.... I basically -- once counsel had kicked several other people and moved some jurors up, I saw ... an opportunity to move other jurors into position. As far as how I felt about my jury panel, she was the one that I was least likely to keep at that point. She's young in age. She's a barista.

"I didn't feel -- I was looking for upper-level-management-type people and not someone that works at a coffee shop. I feel like those people can tend [to] be more sympathetic towards people. Just the way that she appeared to be looking at me, I didn't like that. She looked sympathetically at the defendant. Those are multiple reasons for why I did what I did.

"THE COURT: So why did you pass her a number of times then? Why did you not excuse her on the times that you passed? [¶] ...

"MR. MYER: Because I felt that the panel was acceptable to me at that point, and then based strategically on -- I had jurors that I preferred, who after counsel had kicked several people, they were far down the six-pack line, and I saw an opportunity to bring them onto the panel at that point.

"THE COURT: And once again, what was it about Miss [T.] that she was at the bottom of your list?

"MR. MYER: Well, my jurors, I like them to be a little bit older, above -- preferably above 30. She was -- she's relatively young. I look for people who are mid to upper level, like management, like, for example, ** 1025914 ** is a Walmart and HR manager. She's one of the people that came onto the jury that I liked. So I go for upper-level management.

"She was a barista, and basically the way that I felt that she was looking at me, did not necessarily like me, was looking at the defendant. I felt potentially giving the defense sympathetic looks, and those are my reasons."

Defense counsel then pointed out that three of the jurors were a mother, a merchandiser, and a housewife, and, thus, not upper-management-type people. Counsel also stated he did not see any funny looks and did not believe the court did, either. Counsel further suggested that having a prior DUI or other charge appeared to disqualify someone in the prosecutor's mind only if the person's last name was Hispanic. Defense counsel argued:

"[¶] And then in light of the next challenge with Miss [T.], where he's kept her on until somehow the panel texture changed, causing him to want to kick her off rather than any of the new people that came on or any of the Caucasian names. [¶] This is a case involving a father who has the same name.[*fn3 ] I would point out that the District Attorney is going to claim that the father is Sergio Salinas Benevites and has a different last name, but I understand the testimony is that he goes by Sergio Salinas. Hence, there could be a cultural flavor to the trial. And having any Hispanics that might know that culture appears to assist the District Attorney's theory of the case."

The court pointed out that one Hispanic remained on the panel. The prosecutor suggested two others; although defense counsel said he thought one of the two might be Asian and not Hispanic, he did not dispute that the other was Hispanic, but instead argued again that four of the five people challenged had Hispanic names. The court stated:

"THE COURT: We've had a lot of Hispanics that have come up in the last two go-arounds also. But ... first of all, as to [L.], he does have the ... DUI conviction. This is a case where law enforcement are the key prosecution witnesses. I can understand the challenge by the prosecution in that case.

"As to [T.], that's a closer call, but I can understand his strategy in what he was doing. And certainly if the defense had passed the last two or three times, Miss [T.] would be on that jury because the People had passed and not excused her. I'm accepting his explanations for excusing her. She was very young looking and very casually dressed, to say the least.

"So I'm accepting both challenges as not pretextural [sic] in nature to merely strike Hispanics from the jury. So the motion is denied."

B. Analysis

The trial court ruled for the defense in step one of the Batson-Wheeler analysis by finding a prima facie case of improper discrimination as to each defense motion. We assume substantial evidence supports those determinations. (See People v. Silva, supra, 25 Cal.4th at p. 384; People v. Alvarez (1996) 14 Cal.4th 155, 197.) Accordingly, we move to step two.*fn4

At step two, the prosecutor must come forward with a race-neutral explanation for each challenged excusal. (People v. Silva, supra, 25 Cal.4th at p. 384.) "A neutral explanation in the context of our analysis here means an explanation based on something other than the race of the juror. At this step of the inquiry, the issue is the facial validity of the prosecutor's explanation. Unless a discriminatory intent is inherent in the prosecutor's explanation, the reason offered will be deemed race neutral." (Hernandez v. New York (1991) 500 U.S. 352, 360 (plur. opn. of Kennedy, J.).) At this stage, the explanation need not be persuasive, or even plausible. (Purkett v. Elem (1995) 514 U.S. 765, 767-768.)

"...'The justification need not support a challenge for cause, and even a "trivial" reason, if genuine and neutral, will suffice.' [Citation.] A prospective juror may be excused based upon facial expressions, gestures, hunches, and even for arbitrary or idiosyncratic reasons. [Citations.] Nevertheless, although a prosecutor may rely on any number of bases to select jurors, a legitimate reason is one that does not deny equal protection. [Citation.]" (People v. Lenix (2008) 44 Cal.4th 602, 613, italics omitted.)

Whether the prosecutor has offered a race-neutral reason for his or her peremptory challenges is a question of law subject to our independent review. (People v. Alvarez, supra, 14 Cal.4th at p. 198, fn. 9; Paulino v. Harrison (9th Cir. 2008) 542 F.3d 692, 699.) As no discriminatory intent was inherent in any of the prosecutor's reasons, we conclude those reasons were race neutral (Hernandez v. New York, supra, 500 U.S. at p. 360 (plur. opn. of Kennedy, J.)); hence, the prosecutor met his burden with respect to step two of the Batson-Wheeler analysis.

Accordingly, we move to step three. At this stage of the analysis, the trial court must decide whether the opponent of the peremptory strike has proved purposeful racial discrimination by a preponderance of the evidence. (Purkett v. Elem, supra, 514 U.S. at p. 767; People v. Hutchins (2007) 147 Cal.App.4th 992, 997-998.) The persuasiveness of the proffered justification now becomes relevant (Johnson v. California, supra, 545 U.S. at p. 171), as implausible or fantastic justifications will often be found to be pretexts for purposeful discrimination (Purkett v. Elem, supra, 514 U.S. at p. 768). "What is required are reasonably specific and neutral explanations that are related to the particular case being tried." (People v. Johnson, supra, 47 Cal.3d at p. 1218.)

Once the prosecutor comes forward with such an explanation, the trial court must then satisfy itself that the explanation is genuine. (People v. Hall (1983) 35 Cal.3d 161, 167.) "In [this] process, the trial court must determine not only that a valid reason existed but also that the reason actually prompted the prosecutor's exercise of the particular peremptory challenge." (People v. Fuentes (1991) 54 Cal.3d 707, 720.)

"... This demands of the trial judge a sincere and reasoned attempt to evaluate the prosecutor's explanation in light of the circumstances of the case as then known, his knowledge of trial techniques, and his observations of the manner in which the prosecutor has examined members of the venire and has exercised challenges for cause or peremptorily, for 'we rely on the good judgment of the trial courts to distinguish bona fide reasons for such peremptories from sham excuses belatedly contrived to avoid admitting acts of group discrimination.' [Citation.]" (People v. Hall, supra, 35 Cal.3d at pp. 167-168; see also People v. Lomax (2010) 49 Cal.4th 530, 570-571.)

In undertaking this evaluation, the trial court need not make affirmative inquiries, but must find the race-neutral explanations to be credible. (People v. Hamilton (2009) 45 Cal.4th 863, 907.)

"When a trial court has made a sincere and reasoned effort to evaluate each of the stated reasons for a challenge to a particular juror, we accord great deference to its ruling, reviewing it under the substantial evidence standard. [Citations.]" (People v. Jurado (2006) 38 Cal.4th 72, 104-105; accord, People v. Lenix, supra, 44 Cal.4th at p. 627; see Paulino v. Harrison, supra, 542 F.3d at p. 699.) Deference does not, of course, "imply abandonment or abdication of judicial review." (Miller-El v. Cockrell (2003) 537 U.S. 322, 340.)

The record before us clearly establishes the trial court made a sincere and reasoned effort to evaluate each of the prosecutor's stated reasons for his peremptory challenges, even going so far as to question him concerning his excusal of Y.T. Accordingly, application of the substantial evidence standard is appropriate. Such evidence supports the trial court's ruling as to each of the challenged prospective jurors; the trial court neither erred by accepting the prosecutor's explanations nor failed in its duty to examine those reasons for racial discrimination.

The prosecutor's nondemeanor-based reasons for excusing the four prospective jurors were both inherently plausible and supported by the record. (See People v. Silva, supra, 25 Cal.4th at p. 386.) J.H. and A.N. had family members involved in criminal cases, while F.L. had himself been charged with a crime. These were legitimate bases for peremptory challenges. (See, e.g., People v. Turner (1994) 8 Cal.4th 137, 171, disapproved on another ground in People v. Griffin (2004) 33 Cal.4th 536, 555, fn. 5; People v. Cummings (1993) 4 Cal.4th 1233, 1282; People v. Jordan (2006) 146 Cal.App.4th 232, 255-256.) The prosecutor described A.N. and Y.T., without contradiction, as looking relatively young or youthful. Youth and a concomitant limited life experience are also valid bases for excusal. (People v. Gonzales (2008) 165 Cal.App.4th 620, 631; People v. Perez (1994) 29 Cal.App.4th 1313, 1328.) The prosecutor was reasonably specific with respect to his concerns about Y.T.'s job (compare People v. Turner (1986) 42 Cal.3d 711, 725; People v. Allen (2004) 115 Cal.App.4th 542, 552-553), and a prospective juror's occupation is something that, in the prosecutor's subjective and sincere estimation, may not render him or her the best type of juror to sit on the case being tried (see People v. Reynoso (2003) 31 Cal.4th 903, 924-925).

As for the demeanor-based explanations -- that A.N. appeared to be glaring at the prosecutor, and how Y.T. looked at him as opposed to the sympathetic looks she gave appellant -- they are neither affirmatively contradicted by the record nor inherently improbable. (See People v. Reynoso, supra, 31 Cal.4th at pp. 925-926; People v. Jordan, supra, 146 Cal.App.4th at p. 256.) We accept that subconscious racism may lead one to perceive the demeanor of an individual of a certain race in a way that the demeanor of an individual of another race would not be perceived, and so reliance on something such as looks or glares could, in some circumstances, conceivably signal the presence of a discriminatory motive. (See United States v. Milan (3d Cir. 2002) 304 F.3d 273, 283 & fn. 11.) Generally speaking, however, a prospective juror's demeanor may properly be considered by a prosecutor in deciding whether to exercise a peremptory challenge. (See, e.g., People v. Ward (2005) 36 Cal.4th 186, 202; People v. Turner, supra, 8 Cal.4th at pp. 170-171; People v. Cummings, supra, 4 Cal.4th at p. 1282.) The trial court here was in the best position to observe the prospective jurors' demeanors, and its acceptance of the prosecutor's reasons is entitled to great deference. (People v. Stanley (2006) 39 Cal.4th 913, 939.) Moreover, the trial court was in the best position to observe the prosecutor's demeanor, and the manner in which he exercised his peremptory challenges, in assessing the prosecutor's credibility. (People v. Stanley, supra, 39 Cal.4th at p. 939; see People v. Lomax, supra, 49 Cal.4th at pp. 570-571.) The trial court did not necessarily have to personally observe the aspects of the prospective jurors' demeanors on which the explanations were based in order to accept those explanations. (See Thaler v. Haynes (2010) 559 U.S. ___ [130 S.Ct. 1171, 1172, 1174, 1175].)

"The question for the trial court was this: was the reason given for the peremptory challenge a 'legitimate reason,' legitimate in the sense that it would not deny defendant[] equal protection of law [citation], or was it a disingenuous reason for a peremptory challenge that was in actuality exercised solely on grounds of group bias?" (People v. Reynoso, supra, 31 Cal.4th at p. 925.) Substantial evidence supports the trial court's determination that the prosecutor's reasons here were genuine and adequate, and there is no basis in the record for appellant's assertion that the court failed in its duty to examine the prosecutor's reasons for racial discrimination. (See People v. Cummings, supra, 4 Cal.4th at p. 1282.)*fn5

We recognize that "[i]f a prosecutor's proffered reason for striking a [Hispanic] panelist applies just as well to an otherwise-similar [non-Hispanic] who is permitted to serve, that is evidence tending to prove purposeful discrimination to be considered at Batson's third step. [Citation.]" (Miller-El v. Dretke, supra, 545 U.S. at p. 241.) Accordingly, we have undertaken the requisite comparative analysis (see People v. Lenix, supra, 44 Cal.4th at pp. 607, 621-622); "[v]iewing such comparative evidence in light of the totality of evidence relevant on the claim, we conclude it does not demonstrate purposeful discrimination." (People v. Cruz, supra, 44 Cal.4th at p. 659.)

The prosecutor stated that he excused J.H. because she said she had "tons of family" in criminal cases. Appellant points out that the prosecutor did not excuse juror No. 939424, who stated that she had been charged with a misdemeanor before; juror No. 979172, who revealed she had one family member with a criminal background that was "a hundred percent self-inflicted"; or juror No. 1083920, who related that she had been arrested about nine years earlier for possession of a controlled substance. Appellant's comparisons do not suggest purposeful discrimination: There is a significant difference between having "tons of family" involved in criminal cases and the circumstances of the jurors who were not excused.

Appellant also compares the foregoing three jurors with F.L., whom the prosecutor stated he excused because he had been charged with a DUI. Again, the comparisons do not help appellant: F.L.'s criminal charge was no more than a year old. He was much more likely to be biased -- however unconsciously -- against the prosecution's key witnesses, who were law enforcement officers, than someone whose brush with the criminal justice system was years earlier or someone who saw a family member's situation as being completely that family member's doing. Moreover, there is nothing in the record to call into question the prosecutor's statement that he did not think F.L. was Hispanic.

Appellant further compares the foregoing three jurors with A.N., whom the prosecutor stated he excused because she had a brother who had been convicted of a felony, she was relatively youthful, and he felt she was glaring at him. Again, there is a substantial difference between having a close family member who was convicted of a felony, and a family member with a criminal background that was perceived as entirely that person's fault. Moreover, juror No. 939424 related that she had been in the medical field about 16 years, while juror No. 979172 stated that she had been a retail store manager for over 13 years. This suggests both were older and had more of the type of employment responsibilities preferred by the prosecutor than A.N. As far as the prosecutor's feeling that A.N. was glaring at him, appellant says, "It is curious that the prosecutor only perceived that Hispanic jurors were looking at him in a suspicious manner." We do not know this to be so, however, because we do not know the reasons why the prosecutor excused non-Hispanic jurors.

Turning to Y.T., the prosecutor stated that he excused her because of her youth, her employment, and how she was looking at him in comparison to how she was looking at appellant. Appellant points out that the prosecutor did not challenge juror No. 962483, who had been laid off from his or her work for Tulare County a few months before trial and was going to school fulltime to become a court reporter; juror No. 1058968, who described her occupation as "a mother"; juror No. 998679, who gave her occupation as "housewife" and who had lived in Tulare County for over 40 years; juror No. 1083920, who described herself as a homemaker and mother of three who homeschooled her children; alternate juror No. 1012337, who stated that he or she worked part time in a fast food place, but who also related that he or she had lived in Visalia since 1977 and had served on a jury four times in the last 30 years or so; or alternate juror No. 1004178, who related that he or she had worked as a receptionist at a veterinary hospital for approximately 12 years as of the time of trial.*fn6

The record suggests that the unchallenged jurors had qualities in terms of age, life experience, and management-type skills that Y.T. appeared to lack. Moreover,

"[i]f the prosecutor's occupation- and demeanor-based reasons for excusing [Y.T.] were indeed pretextual, and he was in actuality bent on removing her from the jury because of her Hispanic ancestry, his acceptance of the jury [multiple times] with [Y.T.] seated in the jury box, on [all] such occasions with a second [and possibly third] Hispanic prospective juror also seated on the jury, was hardly the most fail-safe or effective way to effectuate that unconstitutional discriminatory intent." (People v. Reynoso, supra, 31 Cal.4th at p. 926, fn. omitted.)*fn7

Significantly, and as the prosecutor explained, he did not challenge Y.T. until the composition of the jury had changed as the result of defense counsel's exercise of several peremptory challenges.

"[T]he selection of a jury is a fluid process, with challenges for cause and peremptory strikes continually changing the composition of the jury before it is finally empanelled.... '[T]he particular combination or mix of jurors which a lawyer seeks may, and often does, change as certain jurors are removed or seated in the jury box. It may be acceptable, for example, to have one juror with a particular point of view but unacceptable to have more than one with that view. If the panel as seated appears to contain a sufficient number of jurors who appear strong-willed and favorable to a lawyer's position, the lawyer might be satisfied with a jury that includes one or more passive or timid appearing jurors. However, if one or more of the supposed favorable or strong jurors is excused either for cause or [by] peremptory challenge and the replacement jurors appear to be passive or timid types, it would not be unusual or unreasonable for the lawyer to peremptorily challenge one of these apparently less favorable jurors even though other similar types remain. These same considerations apply when considering the age, education, training, employment, prior jury service, and experience of the prospective jurors.' [Citation.]" (People v. Lenix, supra, 44 Cal.4th at p. 623.)

Finally, we note that at least one, and possibly more, trial jurors were Hispanic. "'While the fact that the jury included members of a group allegedly discriminated against is not conclusive, it is an indication of good faith in exercising peremptories, and an appropriate factor for the trial judge to consider in ruling on a Wheeler objection.' [Citation.]" (People v. Ward, supra, 36 Cal.4th at p. 203; accord, People v. Lewis (2008) 43 Cal.4th 415, 480.) Our review of the record as a whole demonstrates that substantial evidence supports the trial court's conclusion that the prosecutor's peremptory excusals of J.H., A.N., F.L., and Y.T. were not motivated by discriminatory intent. (See People v. Cruz, supra, 44 Cal.4th at p. 661.) The Batson-Wheeler motions were properly denied.

II

GOVERNMENT CODE SECTION 70373

In the course of sentencing appellant on July 13, 2009, the trial court imposed a criminal conviction assessment pursuant to Government Code section 70373. Appellant now says the assessment must be stricken because he committed his crime on August 23, 2008, and the statute did not take effect until January 1, 2009.

We recently rejected this claim in People v. Phillips (2010) 186 Cal.App.4th 475, 477-479 (Phillips), holding that the date of conviction, not the date of the crime, controls application of the statute. Other courts have also rejected it and related ex post facto claims. (E.g., People v. Mendez (2010) 188 Cal.App.4th 47, 60-61; People v. Knightbent (2010) 186 Cal.App.4th 1105, 1111-1112; People v. Fleury (2010) 182 Cal.App.4th 1486, 1488-1494; People v. Castillo (2010) 182 Cal.App.4th 1410, 1413-1415; People v. Brooks (2009) 175 Cal.App.4th Supp. 1, 4-7.)

We decline to revisit our holding in Phillips. Since appellant's conviction occurred on May 28, 2009, after the effective date of the statute, an assessment pursuant to Government Code section 70373 was properly imposed.

III

PENAL CODE SECTION 4019

Appellant was awarded credit for 187 days spent in custody, plus 46 days good-conduct credit and 46 days work-time credit, for a total of 279 days. He now claims he is entitled to additional credits under the amended version of Penal Code section 4019 that went into effect after he was sentenced, and he asks us to reconsider our decision rejecting his claim, People v. Rodriguez (2010) 183 Cal.App.4th 1, review granted June 9, 2010, S181808 (Rodriguez).*fn8 We decline to do so.

Under Penal Code section 3, it is presumed that a statute does not operate retroactively "'absent an express declaration of retroactivity or a clear and compelling implication that the Legislature intended [retroactive application]. [Citation.]' [Citation.]" (People v. Alford (2007) 42 Cal.4th 749, 753.) The Legislature neither expressly declared, nor does it appear by "'"clear and compelling implication"'" from any other factor(s), that it intended the amendment operate retroactively. (Id. at p. 754.) Therefore, the amendment applies prospectively only.

We recognize that in In re Estrada (1965) 63 Cal.2d 740, our Supreme Court held that the amendatory statute at issue in that case, which reduced the punishment for a particular offense, applied retroactively. However, the factors upon which the court based its conclusion that the Penal Code section 3 presumption was rebutted in that case do not apply to the amendment to Penal Code section 4019.

We conclude further that prospective-only application of the amendment does not violate appellant's equal protection rights. Because (1) the amendment evinces a legislative intent to increase the incentive for good conduct during presentence confinement, and (2) it is impossible for such an incentive to affect behavior that has already occurred, prospective-only application is reasonably related to a legitimate public purpose. (People v. Hofsheier (2006) 37 Cal.4th 1185, 1200 [legislative classification not touching on suspect class or fundamental right does not violate equal protection guarantee if it bears a rational relationship to a legitimate public purpose].)

DISPOSITION

The judgment is affirmed.

WE CONCUR:

Gomes, J. Dawson, J.


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