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A  Strong Likelihood

A  Strong Likelihood
[prima facie case of discrimination in Jury Selection]

Discussion

1.      The trial court properly denied Fuentes’s Wheeler/Batson motions for lack of a prima facie showing of group bias.

                        During jury selection, Fuentes objected to the prosecutor’s exercise of five of his peremptory challenges, asserting the prosecutor was intentionally excluding Hispanic jurors in violation of People v. Wheeler (1978) 22 Cal.3d 258 and Batson v. Kentucky (1986) 476 U.S. 79.  The trial court denied the Wheeler/Batson motions, finding Fuentes failed in each of these motions to meet his burden of establishing a prima facie case of discrimination.  On appeal, Fuentes contends that finding was erroneous.  We disagree.

                        As our high court noted in People v. Wheeler, supra, 22 Cal.3d at p. 275, “[T]he law recognizes that a peremptory challenge may be predicated on a broad spectrum of evidence suggestive of juror partiality.  The evidence may range from the obviously serious to the apparently trivial, from the virtually certain to the highly speculative.”  Thus, “jurors may be excused based on ‘hunches’ and even ‘arbitrary’ exclusion is permissible, so long as the reasons are not based on impermissible group bias.  [Citation.]”  (People v. Turner (1994) 8 Cal.4th 137, 165.)

                        The party alleging impermissible group exclusion (Wheeler/Batson error) has the burden of establishing a prima facie case of discrimination.  The requisite elements of such a showing include proof that “the persons excluded are members of a cognizable group” and that “all the circumstances of the case . . . show a strong likelihood that such persons are being challenged because of their group association rather than because of any specific bias.”  (People v. Wheeler, supra, 22 Cal.3d at

p. 280.)  “[A] ‘strong likelihood’ means a ‘reasonable inference.’  [Citations.]”  (People v. Box (2000) 23 Cal.4th 1153, 1188, fn. 7.)  If the court finds a prima facie case of discrimination is established, the burden shifts to the party exercising the peremptory challenge to show the absence of discrimination.  (People v. Alvarez (1996) 14 Cal.4th 155, 193.) 

                        An appellate court affords “‘considerable deference’” to a trial court’s finding that a Wheeler/Batson motion fails to establish a prima facie case of group bias.  (People v. Howard (1992) 1 Cal.4th 1132, 1155.)  The reviewing court must affirm the trial court’s denial of the Wheeler/Batson motion “‘if the record “suggests grounds upon which the prosecutor might reasonably have challenged” the jurors in question[.]’  [Citations.]”  (People v. Davenport (1995) 11 Cal.4th 1171, 1200.)  Stated differently, if the appellate court “can divine any nondiscriminatory basis for the challenges,” it must affirm the denial of the Wheeler/Batson motion.  (People v. Trevino (1997) 55 Cal.App.4th 396, 409.)

                        Applying this deferential standard of review, we find the record supports the trial court’s denial of Fuentes’s Wheeler/Batson motions.  As to the five peremptory challenges questioned by Fuentes in his motions, the record establishes a reasonable, race-neutral basis for the prosecutor’s excusing each of these jurors.

                        Juror No. 4 (Ms. Molina) had previously served on a jury that acquitted the defendant of an assault charge.  Prior service on a jury that voted to acquit is a proper, nondiscriminatory ground for exclusion by peremptory challenge.  (See United States v. Thompson (9th Cir. 1987) 827 F.2d 1254, 1260 [“Excluding jurors because . . . they acquitted in a prior case . . . is wholly within the prosecutor’s prerogative. . . . Such reasons may not be logical, but that’s what peremptory challenges are all about”].)

                        Juror No. 16 (Ms. Torres) was unemployed.  Cases hold that a prospective juror’s lack of employment is a permissible, race-neutral basis for a peremptory challenge.  (See Stubbs v. Gomez (9th Cir. 1999) 189 F.3d 1099, 1106; United States v. Brown (7th Cir. 1994) 34 F.3d 569, 572.)  As for Juror No. 11 (Ms. Carillo), the unforthcoming manner in which she responded during voir dire was a sufficient basis for the prosecutor to excuse her.  Carillo refused to elaborate on the information she provided in her juror questionnaire, and gave curt, one-word answers to the court’s questions.  (See Stubbs v. Gomez, supra, 189 F.3d at p. 1105 [demeanor and lack of eye contact showing disinterest in being a juror are valid, race-neutral explanations for excluding juror]; People v. Davenport, supra, 11 Cal.4th at p. 1203 [peremptory challenge properly made in response to demeanor of prospective juror].)

                        Juror No. 6 (Ms. Guzman), who, by the way, both the prosecutor and court believed to be Asian with a Hispanic surname, expressed a general skepticism about the truthfulness of witnesses testifying under oath.  Given that all the witnesses in the case were prosecution witnesses, Guzman’s skepticism toward witnesses would benefit the defense and disadvantage the prosecution.  This was a legitimate, nondiscriminatory basis for excusing her as a juror.

                        Finally, a prospective alternate juror (Ms. Rodriguez) expressed sympathy for the accused, based on her personal experience as the sister of a prisoner serving a Two Strike sentence for robbery.  Fuentes concedes “there were reasonable grounds for excluding” Rodriguez, but asserts the prosecutor excused her “at least in part because of her race.”  This argument ignores the applicable standard of review:  We must affirm the trial court’s denial of the Wheeler/Batson motion if there is “any nondiscriminatory basis for the challenge[].”  (People v. Trevino, supra, 55 Cal.App.4th at p. 409, italics added.)  Consequently, our inquiry into the prosecutor’s challenge to Rodriguez ends with the discovery she was admittedly biased in favor of the accused.  That was a permissible, nondiscriminatory basis for exclusion. 

                        We note that Fuentes’s claims of discrimination were based entirely on the fact the prosecutor had used a “disproportionate” number of his peremptory challenges against Hispanics.  Case law rejects such a method of showing group bias.  “It is well established that a prima facie case cannot be shown solely on the basis that the prosecutor used peremptory challenges against a disproportionate amount of members of a minority group.”  (People v. Buckley (1997) 53 Cal.App.4th 658, 669, fn. 26, citing People v. Howard, supra, 1 Cal.4th at p. 1154 [a showing that the prosecutor excused the only two African-Americans on the panel “offers little practical assistance to the trial court, which must determine from ‘all the circumstances of the case’ whether there is ‘a strong likelihood’ juror exclusion is due to group bias].) 

                        It is also important to note that when the prosecutor exercised his peremptory challenge against Rodriguez as the alternate, four Hispanics remained on the jury.  This fact further undercuts Fuentes’s argument that the five jurors at issue here were excluded for reasons of group bias.  (People v. Buckley, supra, 53 Cal.App.4th at

p. 661 [where Wheeler motion challenged exclusion of two African-American jurors, it was “a pertinent fact” that the jury that was ultimately impaneled contained one African-American juror]; People v. Dunn (1995) 40 Cal.App.4th 1039, 1053-1054.)

                        We conclude the trial court properly denied each of Fuentes’s Wheeler/Batson motions for lack of a prima facie showing of group bias.

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