IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Yolo)
August 24, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
ANGEL RAY SANCHEZ, DEFENDANT AND APPELLANT.
(Super. Ct. No. 09-1474)
The opinion of the court was delivered by: Butz ,j.
P. v. Sanchez
NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
A jury convicted defendant Angel Ray Sanchez of felony assault, with an enhancement for infliction of great bodily injury during commission of the offense. (Pen. Code, §§ 245, subd. (a)(1), 12022.7, subd. (a).)*fn1 The trial court sentenced him to an aggregate state prison term of six years eight months. Defendant's appeal raises the issue of whether the trial court erred in denying his Batson/Wheeler motion*fn2 during voir dire selection of the jury. We shall affirm.
The facts of this case are of limited importance to the issue raised on appeal. Suffice it to say that the evidence showed that on March 18, 2009, defendant, a self-acknowledged alcoholic and member of the Broderick Boys street gang, along with his brother Jesse, brutally assaulted Joshua Thomsen at defendant's apartment, without provocation.*fn3 Defendant testified and acknowledged inflicting the injuries on Thomsen, but claimed Thomsen was the aggressor.
The District Attorney filed an amended information charging defendant in count 1 with felony assault by means of force likely to cause great bodily injury, with enhancements for criminal street gang activity (§ 186.22, subd. (b)(1)) and infliction of great bodily injury during commission of the offense (§ 12022.7, subd. (a)). Count 2 charged defendant with active participation in a criminal street gang (§ 186.22, subd. (a)), with an enhancement for infliction of great bodily injury (§ 12022.7, subd. (a)). The jury convicted defendant of felony assault and found true the enhancement for infliction of great bodily injury under count 1. It acquitted him of the remaining count and found the remaining enhancements not true.
Defendant was sentenced to an aggregate of six years eight months in state prison. The sentence consisted of a two-year term for the felony assault, plus consecutive terms of three years on the great bodily injury enhancement, and one year eight months on two unrelated convictions.*fn4
Defendant argues the trial court erred in denying his Batson/Wheeler motion after the prosecutor exercised peremptory challenges to exclude three Hispanic-surnamed persons from the jury. We disagree.
A. Voir Dire Proceedings
The transcript of jury voir dire proceedings shows that three prospective jurors with Hispanic-sounding surnames were questioned by the court and attorneys, and were ultimately excused by the prosecution by use of peremptory challenges.
Juror A. stated that he worked as a guard for Cache Creek Casino, and was familiar with many law enforcement agents. He admitted that "[p]retty much all my cousins are gang members" in Yolo County, but added that he did not talk to them about it and stayed out of their business. He did not believe anything about the case would keep him from being fair and impartial. Juror A. pledged to render an impartial decision based on the evidence, despite the fact that this was being prosecuted as a gang-related case.
Juror B. stated that she was a business analyst, that she would be "open-minded and take a look at all the evidence," and that she would make her decision "based on that." Twice, when the prosecutor called her name she apparently corrected his pronunciation.
Juror G. stated he had a high school diploma, worked at a law firm doing "[a] little of everything," and was thinking about going to law school. The firm specialized in plaintiff's cases and bankruptcy matters, but occasionally would take on a defense case.
The prosecutor used his peremptory challenges to excuse Jurors A., B. and G. Defendant thereupon made a Batson/Wheeler motion, arguing the prosecutor had improperly challenged the jurors based on their Hispanic surnames. The trial judge found the defense had made out a prima facie case of discrimination and invited the prosecutor to state his reasons for the challenges.
The prosecutor noted that several members of Juror A.'s family were gang members and that he came to court dressed in a red shirt with red shoe laces, indicating possible allegiance to the Norteno gang. Thus, despite Juror A.'s disavowal of personal gang affiliation, the prosecutor "thought it would be risky to keep him . . . ."
As for Juror B., the prosecutor explained that he "simply detected some attitude from her that [he] did not care for," that it was "[n]ot enough to rise to cause," but that he "did not feel that she would be an open-minded juror."
Regarding Juror G., the prosecutor voiced concern that he worked for a law firm and said that it was "the People's preference not to have individuals that work for law firms on the jury."
The trial court ruled that the prosecutor's reasons for excluding each of the three jurors were race-neutral. The judge commented, "I had understood [Juror G.] to say that [his law firm] may have done a defense case or so. And even though that is not the principal line of work they're in, that certainly is a basis other than racial." The court also agreed with the prosecutor that Juror B. had displayed "some kind of attitude there," which justified her exclusion. Finally, the court noted, the problem with Juror A. was that he had "relatives who were gang members." Accordingly, the trial court denied defendant's Batson/Wheeler motion.
"Both the state and federal Constitutions prohibit the use of peremptory challenges to remove prospective jurors based solely on group bias." (People v. Thompson (2010) 49 Cal.4th 79, 107 (Thompson).) "[A]n objection on the basis of Wheeler also preserves claims that may be made under Batson." (People v. Salcido (2008) 44 Cal.4th 93, 135-136, fn. 7.)
"The law applicable to Batson/Wheeler claims is now familiar. '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." [Citation.] 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."'" (Thompson, supra, 49 Cal.4th at p. 107.)
"'Review of a trial court's denial of a Wheeler/Batsonmotion is deferential, examining only whether substantial evidence supports its conclusions.' [Citation.] '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.] As long as the court makes 'a sincere and reasoned effort to evaluate the nondiscriminatory justifications offered, its conclusions are entitled to deference on appeal.'" (Thompson, supra, 49 Cal.4th at p. 107.)
In this case, the trial court found that defendant had made a prima facie showing of racially based exclusion, so the burden shifted to the prosecutor to explain his decisions. "'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."'" (People v. Jones (2011) 51 Cal.4th 346, 360 (Jones), quoting People v. Lenix (2008) 44 Cal.4th 602, 613).) The ultimate issue is the persuasiveness of the tendered reason in light of the record; that is, whether the record supports a trial court's finding that the challenge was properly exercised. (See Miller-El v. Cockrell (2003) 537 U.S. 322, 338-339 [154 L.Ed.2d 931, 951]; People v. Reynoso (2003) 31 Cal.4th 903, 907-908 (Reynoso).) Applying this deferential standard, we conclude the record supports the trial court's finding that the prosecutor's reasons for challenging the three subject jurors were not based on their Latino or Hispanic heritage.
The prosecutor's exclusion of Juror A. was persuasive and easily finds support in the record. Defendant was charged with being an active member of a street gang and the assault charge carried a gang enhancement allegation. Juror A. stated that nearly all of his cousins were gang members and he came to court dressed in well-known gang colors. The prosecutor's fear that the juror could not set aside his gang associations in evaluating the case was not only reasonable, it would likely have justified a challenge for cause.
Nor can we find fault with the prosecutor's challenge of Juror G. due to the policy of his office not to permit employees of law firms to sit on the jury. It is misconduct for a juror to inject his or her views into the deliberations based on claimed expertise or specialized knowledge of the subject area. (In re Malone (1996) 12 Cal.4th 935, 963.) Even though the law firm Juror G. worked for apparently did not engage in a criminal law practice, his law background still posed the risk that he might exercise undue influence over the jury, or that his fellow jurors might unconsciously defer to him because of his presumed expertise. In any event, the reason was free from racial bias. (See Reynoso, supra, 31 Cal.4th at pp. 924-925 [prosecutorial exclusion based on a juror's occupation is legitimate and race-neutral].)
Finally, the court's upholding of the prosecutor's challenge to Juror B. based on her "attitude" must also be upheld. Neutral reasons can be those which, particularly on a cold appellate record, may appear trivial, including a prospective juror's body language, attitude, and lack of attention and so forth. (People v. Arias (1996) 13 Cal.4th 92, 136; Wheeler, supra, 22 Cal.3d at p. 275; People v. Walker (1998) 64 Cal.App.4th 1062, 1067 [conduct that may support a challenge is "often subtle, visual, and therefore incapable of being transcribed, subjective, and even trivial"].) Here, the trial court agreed with the prosecutor's perception that Juror B. came into court with an attitude. Because "attitude" is often incapable of verbal description and seldom conveyed in a reporter's transcript, we must defer to the trial court's finding that this was a bona fide reason rather than a sham excuse. (See People v. Ward (2005) 36 Cal.4th 186, 202 [trial court's upholding of prosecutor's peremptory challenge based on its observations of prospective juror's "demeanor" during questioning sufficient to withstand Wheeler scrutiny unless contradicted by affirmative evidence in the record].)
For the foregoing reasons, substantial evidence supports the trial court's determination that the prosecutor's reasons for excluding jurors A., B. and G. were race-neutral. (Ward, supra, 36 Cal.4th at p. 200.) Defendant's Batson/Wheeler motion was properly denied.
The judgment is affirmed.*fn5
We concur: ROBIE , Acting P. J. MURRAY , J.