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The People v. Kirby Ray Foster


March 21, 2011


Super. Ct. No. 08F06415

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

P. v. Foster CA3


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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Defendant was convicted of assault with a deadly weapon (Pen. Code § 245, subd. (a)(1); unspecified section references that follow are to the Penal Code) and petty theft with a prior conviction (§ 666), but was acquitted of robbery (§ 211). The trial court found charged prior conviction allegations to be true and sentenced defendant to an aggregate prison term of eight years.

Defendant appeals, asserting that the trial court erred in denying his Batson/Wheeler motion (Batson v. Kentucky (1986) 476 U.S. 79 [90 L.Ed.2d 69] (Batson); People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler)). According to defendant, the prosecutor improperly used peremptory challenges to exclude the only three African-American prospective jurors. We affirm the judgment.


Given the nature of defendant's claim on appeal, we dispense with the usual recital of the underlying facts and focus instead on jury selection, specifically, the prosecutor's peremptory challenges to three African-Americans, T.G., C.H., and C.M.

T.G. stated during voir dire that she had several family members who had been "in and out of jail." Her brother had been convicted of joyriding in a stolen car, and spent time in prison for a parole violation; years before, he had been tried and acquitted for murder. T.G. was with her brother on one occasion when he was arrested. When asked whether she thought her brother had been fairly treated, she replied, "Yes and no." T.G. stated she could be a fair and impartial juror despite these contacts with the criminal justice system.

C.H. said that on about 10 different occasions, police officers had pulled his car over for no apparent reason. These stops had colored his attitude toward law enforcement officers and he said he would listen critically to any officer testimony, in part because "they may be a little less credible." He stated that he would "try" to set aside these experiences and listen to the evidence presented.

C.M. stated that her brother had been tried and acquitted of robbery, and that the experience affected her view of law enforcement and the justice system. She said that she would be a cautious juror and would need to be "comfortable with all of the information" presented at trial, but asserted that she would be fair to both the prosecution and the defense.

After the prosecutor exercised peremptory challenges against each of these prospective jurors, defendant moved for a mistrial raising Batson/Wheeler concerns. The trial court found defendant had made a prima facie showing of a discriminatory purpose and asked the prosecutor to explain his challenges.

The prosecutor replied that he had excused T.G. because she "had been with her brother at least on one occasion when he was stopped by the police, and she thought that police were acting inappropriately. She also had family members that had numerous other criminal contacts with law enforcement."

The prosecutor explained he excused C.H. because C.H. believed himself to be a victim of racial profiling and said he would have a critical eye toward law enforcement witnesses.

The prosecutor excused C.M. because she had negative experience with the court system and, based on her body language, the prosecutor did not believe her statement that she could be fair and impartial.

The prosecutor noted that he had also excused two prospective white jurors who also had contacts with law enforcement.

The trial court concluded that the prosecutor had valid, nondiscriminatory reasons for using peremptory challenges and denied defendant's Batson/Wheeler motion.


When a defendant claims that peremptory challenges were used to remove prospective jurors for racial reasons, courts engage in a three-part analysis. A defendant must first make a prima facie case by demonstrating that the facts give rise to an inference of discriminatory purpose. If that showing is made, the burden next shifts to the prosecution to explain its challenges on the basis of permissible, race-neutral justifications. If such an explanation is offered, the trial court then must decide whether defendant has established purposeful racial discrimination. (Johnson v. California (2005) 545 U.S. 162, 168 [162 L.Ed.2d 129, 138]; Batson, supra, 476 U.S. at pp. 93-94 [90 L.Ed.2d at pp. 85-86]; Wheeler, supra, 22 Cal.3d at pp. 280-281; see also People v. Thomas (2011) 51 Cal.4th 449.)

Here, because the prosecutor gave reasons for his peremptory challenges, we proceed directly to the second and third steps of the Batson/Wheeler analysis and determine whether the trial court erred in concluding that the proffered reasons were nondiscriminatory. (See People v. Zambrano (2007) 41 Cal.4th 1082, 1106, disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)

As the California Supreme Court recently reiterated, "'A prosecutor asked to explain his conduct must provide a "'clear and reasonably specific' explanation of his 'legitimate reasons' for exercising the challenges." [Citation.] "The justification need not support a challenge for cause, and even a 'trivial' reason, if genuine and neutral, will suffice." [Citation.]' [Citation.] '"[W]e review a trial court's determination regarding the sufficiency of a prosecutor's justifications for exercising peremptory challenges 'with great restraint.'" [Citation.] The trial court's determination is a factual one, and as long as "'"the trial court makes a 'sincere and reasoned effort' to evaluate the nondiscriminatory justifications offered, its conclusions are entitled to deference on appeal"'" when they are supported by substantial evidence. [Citation.]' [Citation.]" (People v. Thomas, supra, 51 Cal.4th at p. 474.)

In essence, the issue is whether the trial court finds the prosecutor's explanation to be credible, based on factors such as the reasonableness of the explanation, the prosecutor's demeanor, and the trial court's own observations of the voir dire. (People v. Lenix (2008) 44 Cal.4th 602, 613.)

Defendant contends that the prosecutor used his peremptory challenges to excuse the only three African-American prospective jurors and that the court erred in accepting the proffered nondiscriminatory reasons for these challenges. As evidence of the prosecutor's racial motivation, defendant relies on the seating of Juror No. 3251684, a juror who, according to defendant, was not African-American and gave answers very similar to those of the three challenged prospective jurors.

There is one fundamental problem with defendant's argument: A settled statement, filed in this court, establishes that Juror No. 3251684 was, in fact, African-American. This comports with the trial court's description of the venire as well. The record refutes defendant's claim that all of the African-American members of the venire were excused by the prosecution.

In his reply brief, defendant gamely tries to argue that even though Juror No. 3251684 was seated, the prosecutor accepted her on the panel only to "help [insulate] his impermissible challenges to the other African-American venirepersons on review." Defendant asserts that Juror No. 3251684 would ordinarily be deemed unacceptable by the prosecution and that one of the excused African-American prospective jurors had experiences and had answers that were "objectively more acceptable from a prosecution perspective than those of [Juror No.] 3251684."

Defendant's argument is based entirely on conjecture. There is no evidence to support his claim of a calculated plan of discrimination.

Defendant also errs on the facts in that the voir dire responses of Juror No. 3251684 were not comparable to those of the challenged prospective jurors. Most notably, Juror No. 3251684 had a generally positive view of law enforcement. She had several close relatives who worked as police officers and Highway Patrol members. She also had close relatives who were lawyers. However, a nephew faced prosecution for an altercation with a police officer. Juror No. 3251684 had one negative experience with law enforcement when she was stopped for suspicion of drunk driving after she had delivered Thanksgiving pies to Highway Patrol officers at the State Capitol. She believed the incident was an isolated one and that she could put it aside. She thought it would be "kind of tough" to be a juror because she considered herself to be a "nurturing person," but she stated she could be a fair and impartial juror.

This juror's experiences and attitudes stand in stark contrast to those of T.G., C.H., and C.M. As we outlined earlier in this opinion, the prosecutor gave nondiscriminatory reasons for excusing each of these African-American prospective jurors and the trial court found those reasons to be plausible and supported by the record. (People v. Silva (2001) 25 Cal.4th 345, 386.) The court did not err in making this determination.


The judgment is affirmed.

We concur: NICHOLSON ,Acting P. J. ROBIE J.


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