(Super. Ct. No. SF103132A)
The opinion of the court was delivered by: Blease , Acting P. J.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
A jury convicted defendant Cosme Eduardo Gil of one count of robbery (Pen. Code, § 211)*fn1 , three counts of false imprisonment (§ 236), and one count of criminal threats (§ 422) stemming from the early morning robbery of a J.C. Penney store in Stockton, California. The jury also found defendant was personally armed with a rifle during the commission of the offenses. (§§ 12022.53, subd. (b) & 12022.5, subd. (a).) The trial court sentenced defendant to 15 years in prison.
Defendant, who is Hispanic, claims the prosecutor's peremptory challenges against prospective Hispanic jurors violated his constitutional right to equal protection and his right to trial by a jury drawn from a representative cross-section of the community under the California Constitution. The trial court ruled defendant had not made a prima facie showing of discriminatory intent pursuant to Batson v. Kentucky (1986) 476 U.S. 79 [90 L.Ed.2d 69] (Batson). That case set forth a three step process for determining whether a prosecutor's use of peremptory challenges violates the Equal Protection Clause. First, the defendant must set forth a prima facie case of purposeful discrimination. (Id. at pp. 93-97 [at pp. 85-88].) Then the burden shifts to the state to come forward with a race-neutral explanation for the challenge. (Id. at p. 97 [at p. 88].) Third and finally, the trial court must determine whether the defendant has established purposeful discrimination. (Id. at p. 98 [at pp. 88-89].)
The trial court reasoned that no prima facie case had been shown because determining who was Hispanic was too difficult, and because using two out of three peremptory challenges to challenge Hispanic jurors did not constitute a pattern of discrimination. We shall conclude that because the challenged jurors had Spanish surnames, the trial court should have presumed that they were members of a cognizable group unless it knew otherwise. This, together with the facts that the prosecutor used two out of three challenges against Hispanic jurors, and engaged in no voir dire of one of the potential jurors was sufficient to state a prima facie case.
We shall order a limited remand to allow the trial court to complete the three Batson steps, if possible. If it is not possible, defendant must be retried.
Defendant also claims his confessions should not have been admitted because they violated Miranda*fn2 and because they were involuntary. Although we agree with defendant that the trial court should have excluded his jailhouse interview, we conclude the jury's consideration of the interview was harmless since defendant had already confessed to the crime in some detail. However, we conclude defendant's sentences for false imprisonment and making criminal threats should have been stayed pursuant to section 654 because they were committed to facilitate the robbery, and not for any separate purpose.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant was employed as a janitorial supervisor for the J.C. Penney store in Stockton. He supervised Yolanda Ramos and Mario Rodriguez, two of the victims in this case. The third victim was Patricia Miller, a manager for J.C. Penney.
On January 13, 2007, Ramos, Rodriguez, and Miller arrived for work at 5:00 a.m. The maintenance crew usually begins work at 6:00 a.m., but defendant requested they start an hour earlier that day. As they were signing in, Rodriguez remarked to Ramos that defendant had not arrived yet.
Ramos was walking toward the store entrance when she saw a car pull up in front of the door, and two people emerged from it. Both people entered the store, and were wearing dark clothing with hoods and something covering their faces from the eyes down. One of the two carried a rifle.
The intruders took Miller's cell phone and key ring containing the keys to the store. There were approximately 30 to 40 keys on the ring. The keys were not marked to indicate which lock they opened. After handing over the keys, Miller heard one of the intruders lock the front door without asking which key fit the lock.
The intruders bound the victims' hands behind their backs with duct tape. Then, they walked the three victims to the jewelry department. One of the intruders, the one without a gun, took Ramos and Rodriguez back to the maintenance office, leaving Miller in the jewelry department with the other intruder. Ramos and Rodriguez were left in the maintenance office and told they would be killed if they left the office. The intruder disabled the phone that was in the room and confiscated Ramos's cell phone.
The intruder who remained with Miller told her that she was not going to be harmed. The intruder was soft-spoken and had a slight Hispanic accent. Miller recognized the voice as defendant's. Defendant told Miller that she should not work there anymore, and "[w]e'll get your family." Defendant told Miller to tell the police that the robbery had been perpetrated by African Americans. Miller believed the other perpetrator was the person who had been maintenance supervisor prior to defendant. Her belief was based on the man's build and the way he moved and interacted with defendant.
When the second intruder returned to the jewelry department, they instructed Miller to open the jewelry safes and display cases in that area. The intruders took suitcases from the luggage department and loaded them with stolen jewelry. After getting the jewelry, they said they wanted cash, and Miller took them to the cash room. After getting the cash from the cash room, they brought Miller back to the jewelry department and took her purse. They wanted the key to the camera room, but Miller told them she did not have it.
The intruders took Miller back to the maintenance office, where she, Ramos, and Rodriguez were told to wait inside for an hour. Miller freed the two other employees, then the three waited approximately 15 minutes before exiting and calling the police.
Around 6:00 a.m. that morning, Fernando Ventura, defendant's brother-in-law, was awakened by defendant at the house the two shared. Defendant appeared flushed and agitated. Defendant gave Ventura a set of car keys to a blue Honda and asked Ventura to take the car. Ventura had not seen defendant with the Honda before that morning. Ventura parked the Honda in his garage. Defendant left clothes consisting of a pair of pants, a jacket, and a pair of tennis shoes strewn around the house and asked Ventura to throw the clothes away. Ventura stored the clothing in his car.
Later the next day, Ventura moved the Honda to the front of his house and looked in the trunk. The trunk contained luggage and jewelry. A search of the Honda revealed over $23,000 in cash. The jewelry inside the three suitcases was valued at over $447,000. The police also took the clothing in Ventura's car. In all, police recovered a little over $25,000 in cash and jewelry valued at just over $1.7 million. The remainder of the loot was discovered in Oakland.
Defendant was interviewed by police on the day of the robbery, as were all the other store employees. The interview was videotaped and the video was played for the jury. At first defendant denied any involvement in the robbery. When asked if anyone had problems with the store, defendant named Ricardo Hernandez, the former maintenance supervisor. Hernandez lived in Oakland.
Eventually, defendant admitted to helping Hernandez by going into work a little late and staying out of the way to "let him do this dirt . . . ." He claimed Hernandez was a gang member who had threatened defendant's family if defendant did not cooperate, but denied any actual participation in the robbery. Later in the interview, defendant finally admitted his participation in the robbery.
In defendant's jailhouse interview, conducted two days after his arrest, defendant admitted that he kept some of the stolen goods.
Defendant testified on his own behalf. He admitted the robbery, but claimed Hernandez told him he had to do the robbery or he (Hernandez) would kill his family. He testified that he expected to be paid for the robbery. He did not seek help from the police because he did not trust the police.
Defense counsel made a motion under People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler) and Batson, supra, 476 U.S. 79 [90 L.Ed.2d 69], after the prosecutor used a peremptory challenge to exclude a person defense counsel claimed was the second Hispanic potential juror excluded by the prosecution. The trial court found no prima facie case of discrimination because there was no pattern of discrimination, and because of the difficulty in establishing bias based on the exclusion of Hispanic jurors. Defendant contends the trial court's findings were in error.
The prosecutor exercised three peremptory challenges as to the jury, and two peremptory challenges as to the alternate jurors. The first juror the prosecutor excused was Scott McBee. The second juror the prosecutor excused was Laura Miramontes. All potential jurors were directed to provide the answers to a standard list of questions. Miramontes stated she was a student and housewife, had four children, traveled in her spare time, and had a husband who was a general contractor. Miramontes was not further examined on voir dire by the court or by either party.
The third juror the prosecutor excused was Fernando Avila. Avila was employed relaying phone calls to the hearing and speech disabled. He was single, had an AA degree, and was currently trying to transfer to a university. Avila stated that he had a cousin currently being charged with murder in Modesto. He stated he did not know any of the facts of his cousin's murder case and that he did not think it would affect his judgment.
On voir dire examination by defense counsel, Avila stated that he intended to study international law relations. He stated he did not speak Spanish. He had taken a criminal justice class in college.
The prosecutor further questioned Avila regarding his cousin's murder case. Avila stated that the case was pending, that he had not been given any details about the case and had not been following it, that he grew up with his cousin, and that they had grown apart with his cousin going "in and out of the system as we grew older."
After the prosecutor excused Avila, defense counsel objected. He stated that Avila's name and appearance indicated he was Hispanic. Avila had indicated that he knew none of the facts regarding his cousin's case, and in all other respects appeared to be a good juror.
Defense counsel further stated there did not appear to be any other Hispanics on the jury, although one other juror, number 9, appeared to be of Filipino descent, indicating that juror had a Hispanic surname. Defense counsel stated that the prosecutor's previous challenge had been to Miramontes, who was then the only Hispanic on the jury. Thus, defense counsel argued, the prosecutor had removed the only two Hispanics available on the jury with his last two peremptory challenges. Defense counsel also pointed to three other jurors, apparently because they had Hispanic surnames. He said that juror number 11 had blond hair and fair skin, and juror number 5 did not look to be of Hispanic descent. Juror number 9 appeared to be Filipino.
The prosecutor argued that no prima facie case had been made, and that he was unsure whether either Miramontes or Avila were Hispanic.
The trial court made the following findings:
"It is very difficult, in my view anyway, and I may be different than others. I think it is very, very difficult any more to establish bias based upon Hispanic jurors. The population especially in Stockton is so mixed. It is virtually impossible to determine who may or may not have some Hispanic ancestry. It is not to say it can't be done. I am sure it can be. We all need to be very, very sensitive to that issue and alert for it.
It is so difficult to tell, if, for example, Mr. Villapudua [defense counsel], you said Mr. Estes, superintendent of Linden School District, was not Hispanic. I have to say, in all good faith, I can't agree with you. He could well be Hispanic. You can't tell by name. .
He was a relatively dark skinned person. Black hair. Black mustache. He could well have been Hispanic. You can't tell. . . . Mr. Avila clearly was Hispanic, and I believe Ms. Miramontes probably was, but even though she has [a] Hispanic last name, black hair, fairly light skin. For the sake of argument, let's say she was probably Hispanic.
I have to disagree with you as to the background of Filipino people. Spain settled, and one time owned the Philippines. So, I think ...