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People v. Gutierrez

Supreme Court of California

June 1, 2017

THE PEOPLE, Plaintiff and Respondent,
RENE GUTIERREZ, JR., Kern County Defendant and Appellant. THE PEOPLE, Plaintiff and Respondent,
GABRIEL RAMOS, Defendant and Appellant. THE PEOPLE, Plaintiff and Respondent,
RAMIRO ENRIQUEZ, Defendant and Appellant.

         Superior Court Kern County, No. BF137853C, BF137853B, Ct.App. 5 F065984, 5 F065481, 5 F065288 Michael E. Dellostritto Judge

          Scott Concklin, under appointment by the Supreme Court, for Defendant and Appellant Rene Gutierrez, Jr.

          Donn Ginoza, under appointment by the Supreme Court, for Defendant and Appellant Gabriel Ramos.

          Janet J. Gray, under appointment by the Supreme Court, for Defendant and Appellant Ramiro Enriquez.

          Mary McComb, State Public Defender, Elias Batchelder and AJ Kutchins, Deputy State Public Defenders, as Amici Curiae on behalf of Defendants and Appellants.

          Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler and Dane R. Gillette, Chief Assistant Attorneys General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein, Eric L. Christoffersen, Rachelle A. Newcomb and Jennifer M. Poe, Deputy Attorneys General, for Plaintiff and Respondent.

          Cuéllar, J.

         Civil litigants and criminal defendants are guaranteed the right to trial by jury under the state and federal Constitutions. Because of this, California's system of justice depends on jurors. The mix of Californians who report for jury service across the state changes nearly every day, but the responsibility of courts to assure integrity in the selection of jurors does not. We have long held that discrimination in jury selection based on race, ethnicity, or similar grounds offends constitutional guarantees -- and so has the United States Supreme Court. (People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler); Batson v. Kentucky (1986) 476 U.S. 79 (Batson).) It is not only litigants who are harmed when the right to trial by impartial jury is abridged. Taints of discriminatory bias in jury selection - actual or perceived -- erode confidence in the adjudicative process, undermining the public's trust in courts. (Miller-El v. Dretke (2005) 545 U.S. 231, 238; Powers v. Ohio (1991) 499 U.S. 400, 412.)

         During jury selection proceedings at trial, defendants Rene Gutierrez, Jr., Gabriel Ramos, and Ramiro Enriquez (collectively, defendants) joined in a Batson/Wheeler motion, contending that the prosecutor had improperly excluded prospective jurors on account of Hispanic ethnicity, after the prosecutor exercised 10 of 16 peremptory challenges to remove Hispanic individuals from the jury panel. The trial court found that defendants had established a prima facie case, but denied defendants' motion after finding the prosecutor's reasons to be neutral and nonpretextual. The Court of Appeal affirmed defendants' convictions in all respects.

         This case offers us an opportunity to clarify the constitutionally required duties of California lawyers, trial judges, and appellate judges when a party has raised a claim of discriminatory bias in jury selection. What we conclude is that the record here does not sufficiently support the trial court's denial of the Batson/Wheeler motion with respect to one prospective juror. The error is structural, damaging the integrity of the tribunal itself. In addition, the Court of Appeal erred in refusing to conduct comparative juror analysis. Defendants' resulting convictions must be reversed.

         I. Background

         A. Overview

         Around midnight on July 30, 2011, defendant Ramos became involved in an altercation with Clarence Langston in the parking lot of the Western Nights Motel in Bakersfield. Ramos asked defendants Gutierrez and Enriquez, who had been observing from a balcony, to come down. Ramos said he was going to retrieve a gun to defend himself, and he left the motel on foot. Langston rode away on his bicycle.

         Gabriel Trevino testified that after Ramos and Langston left the motel premises, he, along with Enriquez and Gutierrez, got into an SUV driven by Kyle Fuller. At a stop sign, Enriquez said, “Look, there he is, there he is, ” identifying Langston. Gutierrez exited the vehicle, brandished his firearm, and fired three rounds. Langston was hit with multiple shotgun pellets and suffered nonfatal wounds to his upper body.

         The prosecution's gang expert testified that defendants were Sureño gang members, and that the shooting was gang-related. According to the expert, Ramos was a member of the Varrio Bakers, a Sureño gang subset based in Bakersfield. Gutierrez and Enriquez, according to the expert, were members of Varrio West Side Shafter, a different Sureño gang subset based in Shafter. And Trevino testified that he himself was member of Varrio Wasco Rifas, a Sureño gang subset based in Wasco.

         On June 6, 2012, a jury convicted Gutierrez and Enriquez of attempted premeditated murder (Pen. Code, §§ 664 & 187, subd. (a));[1] assault with a firearm (§ 245, subd. (a)(2)); and active participation in a criminal street gang (§ 186.22, subd. (a)). As to those two defendants, the jury found applicable a firearm enhancement (§ 12022.53, subds. (d) & (e)(1)) as to attempted premeditated murder, and a gang enhancement (§ 186.22, subd. (b)(1)) as to attempted premeditated murder and assault with a firearm. The jury deadlocked in deciding whether Ramos committed attempted premeditated murder and assault with a firearm, so the court declared a mistrial as to those counts. Ramos was found guilty of active participation in a criminal street gang, and he thereafter pleaded no contest to making criminal threats and admitted prior convictions. Following a bifurcated court trial, the court found true the prior strike conviction allegations as to Enriquez and Gutierrez.

         Gutierrez was sentenced to prison for 30 years to life, plus 27 years. Enriquez was sentenced to prison for 14 years to life, plus 25 years. Ramos was sentenced to prison for 5 years. The Court of Appeal consolidated the appeals for Gutierrez, Ramos, and Enriquez. It unanimously affirmed the judgments in all respects.

         B. Batson/Wheeler Motion

         All three defendants are Hispanic, and they joined in a Batson/Wheeler motion toward the end of voir dire proceedings. The motion was brought on the basis of asserted discriminatory exclusion of Hispanic individuals. Although counsel for Gutierrez also commented that a disproportionate number of strikes had been against females, he did not do so until after the prosecutor tendered his neutral explanations for panelists identified as Hispanic. Even assuming that defendants properly made a motion challenging the prosecutor's exclusion of females, the issue is not preserved for appeal because counsel did not obtain a ruling from the trial court. The court did not determine whether defendants established a prima facie case based on gender discrimination. (See People v. Lewis (2008) 43 Cal.4th 415, 481-482 [it was “incumbent on counsel” to secure a trial court ruling on additional Batson/Wheeler grounds].)

         By the time the motion was made, the People had exercised 16 peremptory strikes -- 10 of them against individuals identified as Hispanic, either based on appearance or surname.[2] The court observed that four of the prosecutor's challenges against Hispanics were consecutive. There were two Hispanic prospective jurors seated on the panel at the time of the motion.

         The People do not dispute that the prosecutor's pattern of challenges showed “a disproportionate number of... peremptory challenges against Hispanics.” After finding that defendants had established a prima facie case under the Batson/Wheeler framework, the court asked the prosecutor to explain the reasons for his challenges. The prosecutor did so for each removed Hispanic panelist. The court individually reviewed eight out of 10 proffered justifications. The court did not individually review the strikes of Prospective Jurors Nos. 2468219 and 2547226.[3] Thereafter, the court made a global finding that the prosecutor's strikes were neutral and nonpretextual. It also found that the prosecutor “paid the same attention to all the jurors in terms of questioning” and “asked appropriate questions” of all prospective jurors. The court denied defendants' motion.

         Thereafter, the People struck three more panelists. Defendants individually exercised further peremptory challenges, with counsel for Gutierrez removing one prospective juror previously identified as Hispanic. The final jury included one Hispanic individual. After additional voir dire, two alternate jurors were selected. Defendants did not renew their Batson/Wheeler motion. We granted review on the limited issue of whether the Court of Appeal erred in upholding the trial court's denial of defendants' joint Batson/Wheeler motion.[4]

         II. Discussion

         A. Legal Standard

         Peremptory challenges are a longstanding feature of civil and criminal adjudication. But the exercise of even a single peremptory challenge solely on the basis of race or ethnicity offends the guarantee of equal protection of the laws under the Fourteenth Amendment to the federal Constitution. (Batson, supra, 476 U.S. 79; United States v. Martinez-Salazar (2000) 528 U.S. 304, 315.) Such conduct also violates a defendant's right to trial by a jury drawn from a representative cross-section of the community under article I, section 16 of the state Constitution. (Wheeler, supra, 22 Cal.3d 258, 276-277.)

         At issue in a Batson/Wheeler motion is whether any specific prospective juror is challenged on account of bias against an identifiable group distinguished on racial, religious, ethnic, or similar grounds. (People v. Avila (2006) 38 Cal.4th 491, 549 (Avila).) Exclusion of even one prospective juror for reasons impermissible under Batson and Wheeler constitutes structural error, requiring reversal. (People v. Silva (2001) 25 Cal.4th 345, 386 (Silva).)

         When a party raises a claim that an opponent has improperly discriminated in the exercise of peremptory challenges, the court and counsel must follow a three-step process. First, the Batson/Wheeler movant must demonstrate a prima facie case by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose. The moving party satisfies this first step by producing “ ‘evidence sufficient to permit the trial judge to draw an inference that discrimination has occurred.' ” (Avila, supra, 38 Cal.4th at p. 553, quoting Johnson v. California (2005) 545 U.S. 162, 170.)

         Second, if the court finds the movant meets the threshold for demonstrating a prima facie case, the burden shifts to the opponent of the motion to give an adequate nondiscriminatory explanation for the challenges. To meet the second step's requirement, the opponent of the motion must provide “a ‘clear and reasonably specific' explanation of his ‘legitimate reasons' for exercising the challenges.” (Batson, supra, 476 U.S. at p. 98, fn. 20.) In evaluating a trial court's finding that a party has offered a neutral basis - one not based on race, ethnicity, or similar grounds - for subjecting particular prospective jurors to peremptory challenge, we are mindful that “ ‘[u]nless a discriminatory intent is inherent in the prosecutor's explanation, ' ” the reason will be deemed neutral. (Purkett v. Elem (1995) 514 U.S. 765, 768 (per curiam) (Purkett).)

         Third, if the opponent indeed tenders a neutral explanation, the trial court must decide whether the movant has proven purposeful discrimination. (See Johnson v. California (2005) 545 U.S. 162, 168.) In order to prevail, the movant must show it was “ ‘more likely than not that the challenge was improperly motivated.' ” (People v. Mai (2013) 57 Cal.4th 986, 1059.) This portion of the Batson/Wheeler inquiry focuses on the subjective genuineness of the reason, not the objective reasonableness. (People v. Reynoso (2003) 31 Cal.4th 903, 924.) At this third step, the credibility of the explanation becomes pertinent. To assess credibility, the court may consider, “ ‘among other factors, the prosecutor's demeanor;... how reasonable, or how improbable, the explanations are; and... whether the proffered rationale has some basis in accepted trial strategy.' ” (People v. Lenix (2008) 44 Cal.4th 602, 613 (Lenix), quoting Miller-El v. Cockrell (2003) 537 U.S. 322, 339 (Miller-El I).) To satisfy herself that an explanation is genuine, the presiding judge must make “a sincere and reasoned attempt” to evaluate the prosecutor's justification, with consideration of the circumstances of the case known at that time, her knowledge of trial techniques, and her observations of the prosecutor's examination of panelists and exercise of for-cause and peremptory challenges. (People v. Hall (1983) 35 Cal.3d 161, 167-168 (Hall).) Justifications that are “implausible or fantastic... may (and probably will) be found to be pretexts for purposeful discrimination.” (Purkett, supra, 514 U.S. at p. 768.) We recognize that the trial court enjoys a relative advantage vis-à-vis reviewing courts, for it draws on its contemporaneous observations when assessing a prosecutor's credibility. (See Lenix, at p. 613.)

         We review a trial court's determination regarding the sufficiency of tendered justifications with “ ‘great restraint.' ” (See People v. Ervin (2000) 22 Cal.4th 48.) We presume an advocate's use of peremptory challenges occurs in a constitutional manner. (See People v. Fuentes (1991) 54 Cal.3d 707, 721 (conc. opn. of Mosk, J.).) When a reviewing court addresses the trial court's ruling on a Batson/Wheeler motion, it ordinarily reviews the issue for substantial evidence. (People v. McDermott (2002) 28 Cal.4th 946, 970.) A trial court's conclusions are entitled to deference only when the court made a “sincere and reasoned effort to evaluate the nondiscriminatory justifications offered.” (People v. Burgener (2003) 29 Cal.4th 833, 864.) What courts should not do is substitute their own reasoning for the rationale given by the prosecutor, even if they can imagine a valid reason that would not be shown to be pretextual. “[A] prosecutor simply has got to state his reasons as best he can and stand or fall on the plausibility of the reasons he gives.... If the stated reason does not hold up, its pretextual significance does not fade because a trial judge, or an appeals court, can imagine a reason that might not have been shown up as false.” (See Miller-El v. Dretke (2005) 545 U.S. 231, 252 (Miller-El II).)

         B. Overview of Strikes

         The prosecutor provided justifications for strikes of 10 Hispanic individuals. As to four of these prospective jurors - Prospective Jurors Nos. 2647624, 2408196, 2732073, and 2632053 - the prosecutor cited as at least one reason the fact that they were each either previously affiliated with gangs or had family members who were at some point involved in gang activity. The prosecutor struck Prospective Jurors Nos. 2852410 and 2291529 because they recounted negative experiences with law enforcement. Prospective Juror No. 2468219 (Juror 2468219) was removed because she testified about “living in an area with a lot of gang activity, but that she had not specifically seen, ” her brother had been accused of a crime, and she previously served as a juror in a criminal case that resulted in a hung jury. Below we describe in more depth the circumstances surrounding the strikes of the remaining three Hispanic panelists who were the subject of defendants' Batson/Wheeler motion.

         1. Prospective Juror No. 2723471

         A teacher from the City of Wasco, Prospective Juror No. 2723471 (Juror 2723471) was divorced and without children. Her former husband was a correctional officer. She had other relatives in law enforcement positions, including an uncle who worked for California Highway Patrol. Neither she nor anyone close to her had any connections to gangs.

         The prosecutor's colloquy with Juror 2723471, in its entirety, was as follows:

         “[The prosecutor]: And starting with Ms. 2723471, are you gangs [sic] that are active in the Wasco area?

         “[Juror 2723471]: No.

         “[The prosecutor]: Do you live in the Wasco area?

         “[Juror 2723471]: Yes.

         “[The prosecutor]: In Wasco itself?

         “[Juror 2723471]: Yes, I live in Wasco.”

         The prosecutor indicated that his decision to challenge Juror 2723471 was “a tough one.” The reason for the strike, he said, was that “[s]he's from Wasco and she said that she's not aware of any gang activity going on in Wasco, and I was unsatisfied by some of her other answers as to how she would respond when she hears that Gabriel Trevino is from a criminal street gang, a subset of the Surenos out of Wasco.” The prosecutor did not specify which of her “other answers” caused him dissatisfaction, nor do the People identify any such responses bearing on her possible reaction to Trevino's testimony. We have found no other answers in the record to support the People's position on this point.

         The prosecutor had broached the Wasco-related justification a few minutes earlier, during his explanation of his strike of a different Hispanic female, Prospective Juror No. 2408196 (Juror 2408196). He said that that panelist's unawareness of Wasco gang activity “causes a moment of pause when she's going to hear... Mr. Trevino freely admits that he's a member of the Varrio Wasco.” But the prosecutor struck Juror 2408196 because she also had an uncle who was in a gang and had a cousin who had been murdered.[5]

         Regarding Juror 2723471, the court stated: “I checked again, and [the prosecutor] did pass several times with Ms. 2723471 still on the panel.” The court noted that “Ms. 2723471 was excused as a result of the Wasco issue and also lack of life experience.” Defendants argue, and the People concede, that the court was partially mistaken: the prosecutor had not enumerated lack of life experience as a reason for striking Juror 2723471. Accordingly, the sole basis relied upon by the prosecutor for striking this particular panelist was the “Wasco issue.”

         2. Prospective Juror No. 2547226

         Prospective Juror No. 2547226 (Juror 2547226) lived in southwest Bakersfield and worked as a service coordinator for mentally disabled individuals. She had two children, and her significant other was a self-employed truck driver. She had been selected to serve on a jury a couple years earlier, but parties reached a plea agreement. She had no gang experience, nor any close relations with gang members.

         The prosecutor asked this prospective juror several questions about the jury deliberation process and her understanding of a juror's role. Their exchange included the following excerpt:

         “[The prosecutor]: And that's sort of the functions of these deliberations. You talk to each other, and you hear what people hear about the evidence, and you see where everyone is, and then ultimately you try to reach a verdict as best you can, do you understand that?

         “[Juror 2547226]: Yes.

         “[The prosecutor]: As one of 12 jurors, you would have a vote, do you understand that?

         “[Juror 2547226]: Yes.

         “[The prosecutor]: Okay. You also understand that your vote is yours, you have a duty to listen to and talk to other jurors, but how you vote if you're impaneled on this jury is yours, it's your responsibility, and it's what you believe the law that the judge gives you and the facts and the evidence that you heard in court indicated as the truth, do you understand that?

         “[Juror 2547226]: Yes.

         “[The prosecutor]: Would you be able to do that? Would you be able to participate in deliberations and listen to everyone else in speaking your mind?

         “[Juror 2547226]: Yes.

         “[The prosecutor]: You don't think that there's anything about you that's differential [sic] or, you know, want to sit in the background or listen to other people?

         “[Juror 2547226]: No, I don't think so.

         “[The prosecutor]: Okay. You have no problem with speaking your mind and ...

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