IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (San Joaquin)
November 9, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
FINENESS DESHAWN THOMPSON, DEFENDANT AND APPELLANT.
(Super. Ct. Nos. SF108520B & SF108562A)
The opinion of the court was delivered by: Mauro , J.
P. v. Thompson
NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Fineness Deshawn Thompson was convicted of robbery, attempted robbery and assault with a firearm, and he was sentenced to prison for 17 years 8 months. He contends on appeal that the trial court erred in denying his Batson/Wheeler*fn1 motion.
The record supports the trial court's findings that the prosecutor's peremptory challenges were not based on race. We will affirm the judgment.
Over the course of three days in June 2008, defendant participated in numerous robberies during which he was either armed with, or personally used, a firearm. He was arrested and ultimately charged by amended information with six counts of robbery (Pen. Code, § 211; counts 1 through 6), one count of attempted robbery (Pen. Code, §§ 664/211; count 7) and two counts of assault with a firearm (Pen. Code, § 245, subd. (a)(2); counts 8 and 9).*fn2 The amended information alleged that, with respect to counts 1 through 3, defendant personally used a firearm (Pen. Code, § 12022.53, subd. (b)), and with respect to counts 4 through 9, defendant was armed with a firearm (Pen. Code, § 12022, subd. (a)(1)).
At the conclusion of trial, the jury found defendant guilty of counts 2, 4, 5, 6, 7 and 8, and found the related enhancements true. The jury found defendant not guilty of counts 1 and 3, and the trial court declared a mistrial on count 9, which was dismissed pursuant to a request by the People in the interests of justice. The trial court sentenced defendant to 17 years 8 months in prison.
This appeal focuses on the jury selection process before trial. The prosecutor exercised peremptory challenges to excuse three African American men, E.Y., R.E., and M. Defendant made a Batson/Wheeler motion, arguing that there was a reasonable inference they were discharged because of their race. The trial court found that defendant made a prima facie showing and invited the prosecutor to explain the reasons for excusing the prospective jurors.
The prosecutor explained that E.Y. "seemed to be a bit of a loose cannon," was very opinionated about the jury selection process, and "seemed kind of critical about the way [t]he [c]court was exercising its hardships and for cause excusing of jurors." The prosecutor found E.Y. "a bit unpredictable" and drew the impression that E.Y. would not "engage in a meaningful deliberation," but rather would "stick to his guns back in the jury room no matter what." Of greatest concern to the prosecutor was E.Y.'s statement that "he didn't want to be here," and seemed upset that the trial court was excusing other prospective jurors.
As for R.E., the prosecutor explained that, after the court denied his hardship request, R.E. said, "This trial's the last thing that's going to be on my mind," giving the impression he did not want to participate in the trial.
The prosecutor explained that M. "appeared to be younger" and, being from Alameda and the Bay Area, was "new to the area" and had "minimal ties" there. The fact that M. went to college in San Francisco and may have had a tattoo on his neck led the prosecutor to be concerned that M. "would have a liberal viewpoint and would be skeptical of . . . law enforcement's case." The prosecutor added that M. had returned late from lunch, a point that was confirmed by the court reporter. Later, during the second day of trial but outside the presence of the jury, the prosecutor recalled an additional reason for exercising a peremptory challenge as to M., namely that because defendant was contemplating calling an identification expert ("Stacy Rilea, who's a professor of Psychology at UOP"), M.'s degree in psychology might cause him to "overanalyze eyewitness ID's, or . . . give too much weight to [the identification expert's] testimony."
The trial court, noting that defendant had "bumped some African-American males as well," agreed with the prosecutor that E.Y. was "very outspoken" and might be a "loose cannon" based on the fact that he voluntarily spoke and interjected himself in the voir dire process; that he appeared to be "somewhat critical" of the trial court's manner of excusing jurors for cause and hardship; that he gave the impression "he would not engage in meaningful deliberations"; and that "[h]e did say he did not want to be here." With regard to R.E., the trial court agreed with the prosecutor that, after twice attempting to argue a hardship and being denied, it appeared R.E. "would not be concentrating on the trial or paying attention." The trial court noted that R.E. was "very vocal" and "seem[ed] angry" and "quite upset" that his hardship request was denied, giving the impression he "did not want to be here." The trial court also agreed with the prosecutor that M. "appeared younger," was from Alameda County "with little experience in our county," went to school in San Francisco, and had returned late from lunch the day prior, although the trial court could not confirm whether M. had a tattoo on his neck. The trial court found that the peremptory challenges for all three prospective jurors were race neutral.
STANDARD OF REVIEW
A Batson/Wheeler motion involves three steps. (People v. Lenix (2008) 44 Cal.4th 602, 612-613 (Lenix).) First, the trial court must determine whether the defendant has made a prima facie showing that the prosecutor exercised the peremptory challenges based on race. Second, if the showing is made, the burden shifts to the prosecutor to demonstrate that the challenges were exercised for race-neutral reasons. Third, the trial court determines whether the defendant has proven purposeful discrimination. The ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike. (Ibid.)
In the third step, the trial court determines whether the prosecutor's race-neutral explanations are credible. (Lenix, supra, 44 Cal.4th at p. 613.) Factors influencing credibility include the prosecutor's demeanor, how reasonable or improbable the explanations are, and whether the proffered rationale has some basis in accepted trial strategy. (Ibid.) "In assessing credibility, the court draws upon its contemporaneous observations of the voir dire. It may also rely on the court's own experiences as a lawyer and bench officer in the community, and even the common practices of the advocate and the office that employs him or her. [Citation.]" (Ibid.)
A prosecutor's explanation need not support a challenge for cause, and even a trivial reason, if genuine and neutral, will suffice. (Lenix, supra, 44 Cal.4th at p. 613.) "A prospective juror may be excused based upon facial expressions, gestures, hunches, and even for arbitrary or idiosyncratic reasons. [Citations.]" (Ibid.)
"Review of a trial court's denial of a Wheeler/Batson motion is deferential, examining only whether substantial evidence supports its conclusions. [Citation.] 'We review a trial court's determination regarding the sufficiency of a prosecutor's justifications for exercising peremptory challenges "'with great restraint.'" [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.] So 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. [Citation.]'" (Lenix, supra, 44 Cal.4th at pp. 613-614.)
Defendant argues that the trial court violated his constitutional rights by denying his Batson/Wheeler motion. We disagree. We will discuss each of the three challenged prospective jurors in turn.
E.Y., a driver for Safeway, is married to a registered nurse. He owns several guns, describes himself as a cowboy, and goes hunting often. He promised to be fair and impartial and to listen to all the facts and "everybody's sides" and then make his own decision. E.Y. agreed he would listen to opposing viewpoints, but said, "I don't care what nobody else is saying. I'm gonna believe my own thoughts. I'm gonna say what I believe in, just because I'm not gonna agree with everybody else." He added, "Just because a whole group of people believe in one thing, that don't mean I'm gonna believe it. And I'm gonna weigh my weight all the way till the end until I figure out what's right and what's wrong."
E.Y. was issued a traffic ticket a month prior to the trial. He "thought it was unfair" and tried to talk to the officer thinking he would get "a little break," but the officer "didn't wanna work with [him]." E.Y. said he would bring up the issue if he saw the officer in the grocery store or if, by chance, the officer testified during the trial of this matter.
During voir dire examination, following the court's dismissal of another prospective juror for cause, E.Y. expressed his criticism of the process, saying, "Yeah, it's kind of like bias. How can you tell if people didn't wanna leave and they sit up there saying they got friends and all this in law enforcement, how can you tell if they telling the truth or are they just trying to get out of here?" He added, "I gotta tell you I got a whole bunch of friends, and, you know, some of us just don't want to be here. [¶] . . . [¶] How can I sit up here and say I got a friend, I'm gonna believe in everything they gonna say, and then they gonna leave and we're here. And I don't wanna leave [sic] be here, but I'm not gonna sit up here and lie to you and say -- tell you this and tell you that." (Italics added.)
The prosecutor's stated reasons for challenging E.Y. are inherently plausible and supported by the record. (People v. Silva (2001) 25 Cal.4th 345, 385-386.) The prosecutor gave several justifications for excusing E.Y., the most persuasive of which is the fact that E.Y. was upset that other prospective jurors were being excused and twice stated he did not want to be there, placing squarely into question E.Y.'s willingness and ability to engage in meaningful deliberation.
Defendant argues the prosecutor empanelled two non-black prospective jurors -- Juror No. 9 and Alternate Juror No. 1 -- who, like E.Y., had unsuccessfully sought a hardship exemption and "surely expressed a clear desire not to serve." But E.Y. did not request to be excused for hardship, and defendant's inference that Juror No. 9 and Alternate Juror No. 1 had a "clear desire not to serve" based on their hardship request is not borne out by the record. Once the trial court denied their respective hardship requests, neither of those prospective jurors made any indication that they were unwilling to serve on the jury panel. On the other hand, E.Y. twice said that he did not want to participate in the trial.
Defendant argues further that the trial court's finding that E.Y. seemed angry "should carry little weight" because the prosecutor clearly declared he was challenging E.Y. not on his demeanor but on his "supposed desire not to hear the case." Again, defendant is mistaken. In addition to the fact that E.Y. stated he "didn't want to be here," the prosecutor explained that he felt E.Y. was a "loose cannon," "very opinionated" and "kind of critical" about the process, and found him to be "a bit unpredictable." "[R]ace-neutral reasons for peremptory challenges often invoke a juror's demeanor (e.g., nervousness, inattention), making the trial court's firsthand observations of even greater importance. In this situation, the trial court must evaluate not only whether the prosecutor's demeanor belies a discriminatory intent, but also whether the juror's demeanor can credibly be said to have exhibited the basis for the strike attributed to the juror by the prosecutor." (Snyder v. Louisiana (2008) 552 U.S. 472, 477 [170 L.Ed.2d 175, 181].) We defer to the trial court on these determinations of credibility and demeanor. (Ibid.)
The record supports the trial court's finding that the challenge to E.Y. was lawful. (People v. Reynoso (2003) 31 Cal.4th 903, 907-908 (Reynoso).)
R.E. is a heating and air contractor. He is a married father of three children and has a brother who was incarcerated in state prison in Michigan. At the outset, R.E. requested to be excused due to a hardship arising from "landlord-tenant issues." The trial court denied the request. R.E. later stated that he was "put off" by the fact that other prospective jurors were being excused for cause based on their relationship with law enforcement. R.E. revealed that his sister-in-law was murdered 14 years prior, but said he could separate his feelings regarding that event from this trial. He stated, however, that he "would need more than just the mouth of one witness in order to believe something" and "according to the scriptures, the matter of two or three witnesses . . . is firmly established."
R.E. said he had been a party to several lawsuits, including a discrimination action. He explained that he "worked for a place where their high management was white" and nearly all of the employees were either Hispanic or African American. R.E. said that a particular supervisor commonly referred to the employees using derogatory terms and promised to "get rid of the so-called 'N' word." R.E. claimed that other employees "disappeared" and he knew his employer was "going to try to get rid of [him]," so he collected evidence to "prove that they were doing this based upon race."
When questioned about the landlord-tenant issues he was facing and asked if he would be able to sit and listen, R.E. responded, "Sure, if I am being thrown out of my home." When defense counsel asked whether the situation was "okay enough" that R.E. could concentrate on the case at hand, R.E. replied, "Well, the earth isn't spinning in the opposite direction."
The prosecutor's stated reasons for excusing R.E. are inherently plausible and supported by the record. Having had his hardship request denied, R.E. appeared angry and upset and intimated that he had other more important concerns than the trial on his mind, suggesting he might not be willing or able to concentrate on or participate in the task at hand or to give the trial his full, undivided attention.
Defendant again argues that the prosecutor empanelled non-black prospective Juror No. 9 and Alternate Juror No. 1 who, like R.E., had unsuccessfully sought a hardship exemption and "surely expressed a clear desire not to serve." For the reasons stated previously, defendant is wrong and we reject this argument.
In addition, defendant again argues that the trial court's finding that R.E. seemed outspoken "should carry little weight" because the prosecutor clearly declared he was challenging R.E. not on his demeanor but on his "supposed desire not to hear the case." But defendant ignores a portion of the record. In addition to challenging R.E. based on his apparent unwillingness to participate in the trial given his statement that the trial was "the last thing that's going to be on my mind," the prosecutor also noted that R.E. seemed "angry" and "upset." The trial court agreed, and we defer to it on that determination. (Snyder v. Louisiana, supra, 552 U.S. at p. 477 [170 L.Ed.2d at p. 181].)
The record supports the trial court's finding that the challenge to R.E. was lawful.
M., a self-employed web developer, is a married father of two children. He currently lives in Tracy and previously lived in Alameda. He obtained a psychology degree from San Francisco State University. M. said a member of his family was robbed when he was a young boy in middle school, but stated that incident would not affect his ability to be fair. He stated he had no preconceived judgments regarding the case and noted that he would "just listen" to witness testimony rather than look at body language.
The prosecutor's stated reasons for challenging M. are also inherently plausible and supported by the record. The prosecutor explained that M. appeared to be young, he was from the Bay Area, he went to college in San Francisco, and he had a visible tattoo on his neck, all of which caused concern that M. would be liberal-minded and thus less inclined to support a case brought by law enforcement.
Defendant argues M. promised to decide the case on the facts and to presume defendant innocent until proven guilty and that M. said nothing to indicate that he "suffered from any 'liberal' bias or would hold law enforcement to a stricter standard than the law required." While the value judgment expressed in the prosecutor's explanation -- that people with visible tattoos who live and go to college in San Francisco are liberal-minded and thus instinctively skeptical of law enforcement -- may not be reasonable, it is not race related. "The proper focus of a Batson/Wheeler inquiry, of course, is on the subjective genuineness of the race-neutral reasons given for the peremptory challenge, not on the objective reasonableness of those reasons. . . . All that matters is that the prosecutor's reason for exercising the peremptory challenge is sincere and legitimate, legitimate in the sense of being nondiscriminatory. '[A] "legitimate reason" is not a reason that makes sense, but a reason that does not deny equal protection. [Citations.]' (Ibid.)" (Reynoso, supra, 31 Cal.4th at p. 924, citing Purkett v. Elem (1995)514 U.S. 765, 769 [131 L.Ed.2d 834, 840] [the prosecutor's reason for thinking a prospective juror would not make a good juror in the case -- that the prospective juror had long, unkempt hair, a mustache, and a beard -- constituted a valid nondiscriminatory reason for exercising the challenge].)
Aside from having no knowledge of whether or not M. had a tattoo, the trial court acknowledged that M. "appeared younger," was from another county, went to school in San Francisco and had returned late from lunch the prior day. The trial court found that those were "nondiscriminatory reasons for excusing [M.]" "Since the trial court was in the best position to observe the prospective jurors' demeanor and the manner in which the prosecutor exercised his peremptory challenges, the implied finding, that the prosecutor's reasons for excusing [a prospective juror], including the demeanor-based reason, were sincere and genuine, is entitled to 'great deference' on appeal." (Reynoso, supra, 31 Cal.4th at p. 926.) We find no basis in the record to overturn the trial court's acceptance of the prosecutor's explanation.
The trial court's denial of defendant's Wheeler/Batson motion is supported by substantial evidence.
The judgment is affirmed.
We concur: RAYE , P. J. ROBIE , J.