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The People v. Kirby Ray Foster

March 21, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
KIRBY RAY FOSTER, DEFENDANT AND APPELLANT.



Super. Ct. No. 08F06415

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

P. v. Foster CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FACTS AND PROCEEDINGS

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 ...


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