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The People v. Cosme Eduardo Gil

November 28, 2012

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
COSME EDUARDO GIL, DEFENDANT AND APPELLANT.



(Super. Ct. No. SF103132A)

The opinion of the court was delivered by: Robie , Acting P. J.

P. v. Gil

CA3

NOT TO BE PUBLISHED

This case comes to us on appeal for the second time. Again, we remand. In the first appeal, we found defendant Cosme Eduardo Gil had made a prima facie showing that the prosecutor had excused two potential jurors with Spanish surnames for discriminatory purposes. We remanded the case so that the trial court could conduct the remainder of the proceedings required by Batson v. Kentucky (1986) 476 U.S. 79 [90 L.Ed.2d 69] to determine if the prosecutor had exercised his peremptory challenges for some reason other than group bias.

In this second appeal, we conclude the trial court failed to make a "sincere and reasoned effort to evaluate each of the [prosecutor's] stated reasons" for challenging the two jurors (People v. Gutierrez (2002) 28 Cal.4th 1083, 1126), instead stating, "I still don't believe that there was a pattern shown here based upon any discriminatory use of the challenges by the D.A., but the appellate court has found otherwise." The trial court's job is to follow the law -- not pay it lip service. Accordingly, we must remand the case again.

FACTUAL AND PROCEDURAL BACKGROUND

In January 2007, defendant, armed with a rifle, robbed JCPenney, where he was an employee. He bound the hands of three employees with duct tape, threatened to kill two of them, and then stole $25,000 in cash and $1.7 million in jewelry.

A jury found defendant guilty of robbery, criminal threats, and three counts of false imprisonment.

Defendant's first appeal claimed the trial court erred in concluding that no prima facie case of unlawful discrimination had been shown after the prosecutor exercised two peremptory challenges against two prospective jurors with Spanish surnames. We found that a prima facie case had been made and remanded the case for the trial court to conduct further proceedings required by Batson.

Thereafter, the trial court conducted a hearing to determine the prosecutor's reasons for using his peremptory strikes against prospective jurors Avila and Miramontes. The court's ruling in that hearing is at issue in this current appeal.

After generally noting that, from his point of view, "all the witnesses needed Spanish interpreters, they [the witnesses] were Hispanic, [so] there was no reason in my mind to be going out looking to kick Hispanic jurors in this case," the prosecutor stated his reasons for striking Avila and Miramontes from the panel. For Avila, the prosecutor stated his reasons as follows: "As to Mr. Avila, he had a cousin who was currently charged with murder in Modesto, he did state that he wasn't familiar with him or wasn't close to him; however, the fact that he had a close relative in a case that was pending at the time that this case was going was of great concern to me. In addition, from my notes, it shows that he came into court, he had long hair, was wearing baggy pants, which was also an additional concern to me. For those reasons, he was excused."

For Miramontes, the prosecutor stated his reasons as follows: "Now, as to Miramontes . . . she stated that she was a student, she was a housewife, she was not working at the time, she had a husband who was a contractor, or a trucker, my notes said truck, I think it said contractor in the transcript, and that she traveled with him all over the state when he was traveling around. That shows somewhat of a transient lifestyle, although she did have four children here, they were older.

"My main reason for kicking her, as I think back on it and look at my notes, she was an older mother of four, the defense in this case was going to be duress, that somehow he was coerced, and the defense's family was threatened as to the reason why the defendant was involved in the robbery in the first place, and I thought she ...


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