PEOPLE v. CRUTCHER

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Court of Appeal, Second District, Division 7, California.

The PEOPLE, Plaintiff and Respondent, v. Thomas Lee CRUTCHER, Defendant and Appellant.

No. B106035.

Decided: October 27, 1997

Peter Dodd, under appointment by the Court of Appeal, Hornbrook, for Defendant and Appellant. Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Carol Wendelin Pollack, Senior Assistant Attorney General, William T. Harter, Supervising Deputy Attorney General, and Sally P. Brajevich, Deputy Attorney General, for Plaintiff and Respondent.

A jury found appellant guilty of receiving stolen property 1 (Pen.Code, § 496, subd. (a);  count II;  statutory references, unless otherwise indicated, are to the Penal Code) and, in a bifurcated proceeding, found true allegations he had five prior burglary convictions, all “strikes” (§§ 667, subds.(b)-(i), 1170.12, subds. (a)-(d)).2  Appellant was sentenced to prison for 25 years to life.

Appellant contends (1) the prosecutor committed Wheeler (People v. Wheeler (1978) 22 Cal.3d 258, 148 Cal.Rptr. 890, 583 P.2d 748) error;  (2) having introduced appellant's former testimony, the prosecutor was “bound by” that testimony;  (3) CALJIC No. 2.15 (1989 rev.)  (Possession of stolen property) is a violation of due process;  (4) the trial court had a sua sponte duty to define “conscious possession” for the jury;  (5) his burglary convictions constitute only one “strike” because they were not “brought and tried separately”;  and (6) the trial court abused its discretion in not reducing the offense to a misdemeanor (§ 17, subd. (b)).

We find appellant's contentions without merit, correct the judgment, see fn. 2 and affirm the corrected judgment.

FACTUAL AND PROCEDURAL BACKGROUND

The facts may be stated simply.   Our perspective favors the judgment.   (People v. Barnes (1986) 42 Cal.3d 284, 303-304, 228 Cal.Rptr. 228, 721 P.2d 110.)

On April 18, 1995, first grade teacher Stacy Hoherd-Harris arrived at Holly Avenue Elementary School in Arcadia at 7:45 a.m., went to her room 9 on the second floor, opened and left ajar two doors to her room, and put her keys, coffee, and Pentax IQ Zoom 700 camera on her desk.   She then went downstairs to the teachers' room.

William Robertson, the school principal, arrived at 7 a.m. on April 18, 1995.   Students generally arrived around 8 a.m. and were to wait in an outside designated area.   At 8:15 a.m. bells rang and students then were to go to the lineup area.   At 8:22 a.m. teachers were to escort their students from the lineup area to their rooms.   Class started at 8:25 a.m.

Although in the first week or two of a school year some parents personally escorted their children to class it was unusual thereafter for a parent to do so.

Just before 8 a.m.   William Robertson left the designated area, went through double doors to the primary wing and saw appellant, who he knew, walking with a second grade student, the daughter of appellant's girlfriend.   Mr. Robertson and appellant “met” at room 9 or 10 in the hallway.   At most, Mr. Robertson testified, they said “hello.”

A few minutes later Stacy Hoherd-Harris returned to room 9. Her camera was gone.

About three hours later, at 10:55 a.m., appellant pawned the stolen camera at the nearby Monrovia Jewelry & Loan Company for $25.   It was worth about $200.   Appellant was a frequent customer at the pawn shop and the clerk, Mr. Quinones, knew him.   Appellant signed the pawn slip and put his thumb print on it.   A copy was sent to the Monrovia Police Department.

On May 19, 1995, Jenine Smith was preparing to leave her townhouse at 220 West Lemon, City of Monrovia, when she noticed two Hispanic men talking loudly in the alley.   At about 10:30 a.m.   she got in her car and as she was leaving noticed appellant, who she had seen before, just standing two houses away.

Mrs. Smith's husband, who worked around the corner, returned home about 12:05 p.m.   and discovered their house had been burglarized.   He telephoned his wife and then the police.   Stolen were money, compact discs, a woman's leather jacket, and jewelry including a gold and diamond pendant and a man's diamond cluster ring.

About two hours later, at 2:12 p.m., appellant pawned the gold and diamond pendant and diamond cluster ring at the nearby Monrovia Jewelry & Loan Company.   The clerk, Mr. Widaman, who had waited on appellant 15 to 20 times before, gave him $10 for the pendant, salable for $75 to $150, and $50 for the ring, salable for $400 to $800.   Mr. Widaman believed appellant was accompanied by his girlfriend Susan Thibodeau.

Appellant was arrested June 3, 1995.3

Appellant's first trial began March 18, 1996.   Appellant testified and on cross-examination the prosecutor asked him about his felony convictions including a receiving stolen property conviction.   The next day defense counsel moved for a mistrial because the “receiving stolen property conviction” was actually a misdemeanor defrauding an innkeeper conviction.   The trial court (Superior Court Judge Thomas W. Stoever) granted the motion.

The instant trial began June 14, 1996.   On June 27, 1996, the jury found appellant guilty of the May 19, 1995, offense (the pendant and diamond cluster ring).   On June 28, 1996, the jury found appellant not guilty of the April 18, 1995, offense (the Pentax camera).   In a bifurcated proceeding the jury found true the five residential burglary allegations. (§ 667, subds. (b)-(i).) 4

This appeal followed.

DISCUSSION

1. Appellant contends the prosecutor committed Wheeler (People v. Wheeler, supra, 22 Cal.3d 258) error.

During jury voir dire appellant made a Wheeler motion claiming the prosecutor had peremptorily excused Hispanic jurors based upon their race.   The trial court ruled no prima facie case had been made and denied the motion.   Appellant claims error.

Before specifically addressing appellant's claim it may be useful to describe the trial court's method of jury selection, the roles played by counsel and the trial court, and the events immediately preceding appellant's Wheeler motion.

First, the trial court examined the panel for financial or other hardship.   Then the clerk randomly selected 20 prospective jurors to sit in “the jury box.”   Although all 20 were questioned only a juror sitting in chairs 1 through 12 could be peremptorily excused.   An excused juror was replaced by one of the remaining eight.   When the eight were diminished they were replaced from the panel.

The trial court, not counsel, questioned jurors.   Although initially the court's questions were addressed to the entire group of 20 jurors, the court then questioned jurors individually and at length.   Jury selection (not counting alternates) took three days and 200 transcript pages.

As these two examples illustrate, the trial court's questioning of jurors was probing, intense, and revealing.

“The Court:  Mrs. R., in this case what do you expect from the defense?

“Prospective Juror R.:  What do I expect?

“The Court:  What do you expect them to do in this case?   Do you have any expectations what the defense is going to do?

“Prospective Juror R.:  No. I imagine they will sit there and listen to what the prosecutor will present.

“The Court:  So you are not looking to Mr. Mandel [defense counsel] to prove to you that Mr. Crutcher is not guilty?

“Prospective Juror R.:  No.

“The Court:  And why is that?

“Prospective Juror R.:  Because of the way the system works, and that's the way it should be.

“The Court:  Supposing that you are in a trial, my cookie case, and after hearing the evidence you say to yourself, you know, I am not convinced of the defendant's guilt, but the defendant doesn't testify.   Do you think you could vote somebody ․ not guilty, if the defendant didn't testify?

“Prospective Juror R.:  Well, I would take into consideration all the evidence.   His testifying wouldn't make-change my decision or make a difference.”

“․

“The Court:  Juror No. 039, what did you think when you got your summons to come here?

“Prospective Juror No. 39:  I guess I was sort of glad.

“The Court:  Rather be here than at work?

“Prospective Juror No. 39:  No, not that.   It is just I wanted to do it, something I wanted to just experience.

“The Court:  What do you think about our system, do you think it is good, bad indifferent?

“Prospective Juror No. 39:  The system is good.   It works the way it is set up.

“The Court:  What if in all cases the prosecutor has to prove the elements of the crime, certain elements that make up a crime, and we are going to pretend that in the cookie case it is four elements.   And I will instruct you on the law in that cookie case, that they must prove each element beyond a reasonable doubt.   One element could be that it was a cookie.   Another element that the People show it was a cookie.   And another element he ate it, and the fourth one I forget.  [¶] But we will pretend there is [sic] four.   I tell you the People have to prove all four of them and convince you beyond a reasonable doubt that those four elements are true.   And let's pretend they prove three of them but not all four.   That fourth one they just don't have any evidence.   They just can't convince you at all of the fourth one.   How would you vote in a case like that?

“Prospective Juror No. 39:  Not guilty.”

After the initial 20 jurors were questioned in this way, and before any jurors were peremptorily excused, the court asked counsel, at side bar, if they had any follow up questions.   They did, and the court had a juror come to the bench where counsel each questioned the juror.   Other jurors were similarly brought to the bench and questioned.   Additionally, at counsel's request other questions were asked of all 20 jurors.

Only after this process had been completed did counsel begin peremptorily excusing jurors.   After five jurors had been excused, three by the People, two by the defense, and a new group questioned, the court asked if each side passed for cause.   The prosecutor said yes but defense counsel asked to approach the bench where he expressed concern that juror L.W. may not understand English.

The trial court had Mrs. W. come to the bench and then asked her if she was having any difficulty understanding English.   Mrs. W. said she wasn't.   A protracted colloquy ensued.   Both the court and the prosecutor asked Mrs. W. questions.   Mrs. W. returned to her seat, the trial court excused her, and defense counsel passed for cause.

Three more jurors were excused, two by the defense, one by the prosecutor, when the prosecutor accepted the jury.   The defense excused its fifth juror and the prosecutor again accepted the jury.

A new panel was sworn and voir dire resumed.   Again the trial court asked counsel if they had follow up questions and defense counsel said none of the new jurors had admitted being the victim of a crime, he was surprised by that, and “maybe you could ask that question about whether they have been the victim of any kind of crime.”

The prosecutor, undiplomatically, responded:  “They said, Jonathan [defense counsel].  (Italics added.)   You weren't listening.   Mr. S_ had his car burglarized.   Juror No. 048-․ Her son was stabbed, her home was burglarized, and I didn't get the-”

Both sides passed for cause and defense counsel excused his eighth juror, Mr. E. The prosecutor immediately made a Wheeler motion stating “Of the last four peremptories that counsel has utilized three have been Caucasian males, one a Caucasian female.   The defendant is African American.”   The prosecutor noted that none of the excused jurors had sat on a hung jury, all were stable, one was the father of a criminal defense attorney, and none had disclosed a specific bias.   The trial court stated “I don't find a prima facie [case].”

Mr. E. was replaced by a juror with a distinctively Hispanic name, Jesutito Soriano.

The prosecutor exercised her next peremptory challenge, not against Mr. Soriano but against a Caucasian, George Holling.   Defense counsel then made the subject Wheeler motion, stating:

“Mr. Mandel:  I am concerned.   The panel has no Hispanics on it.   There appears to be three Hispanics against whom literally-

“The Court:  You have knocked off two Hispanics.

“Mr. Mandel:  Valdez.

“The Court:  Four and one.

“Mr. Mandel:  Who was the other one?

“The Court:  Paguio.

“Mr. Mandel:  There were reasons for that.

“The Court:  I don't find a prima facie case.

“Mr. Mandel:  Can I at least make a-

“The Court:  I don't find a prima facie case.   I don't need a showing to go forward.

“Mr. Mandel:  Three out of the seven that [sic] were Hispanic, and that's a large percentage of-

“The Court:  You have excused two.

“Mr. Mandel:  I understand.

“The Court:  I find no prima facie case.”

Contrary to defense counsel's assertion, the panel did have a Hispanic, the replacement juror, Jesutito Soriano.   As the trial court accurately noted, defense counsel had excused two Hispanic jurors, juror number 4 Edward Addaz and juror number 1 Victor Paguio.   Defense counsel's reference to a “Valdez” is a mistake.   There was no juror named Valdez.   The reference may have been either to Mr. Addaz (who defense counsel had excused) or to a Mr. Vasquez (juror number 008) who failed to appear one day, reappeared some time later explaining his car had broken down, and was apparently excused by the court.   Defense counsel was also mistaken in asserting the prosecutor had excused three Hispanic jurors.   As we later explain, she had excused only two.

“It is well settled that the use of peremptory challenges to remove prospective jurors solely on the basis of a presumed group bias based on membership in a racial group violates both the state and federal Constitutions.   Under Wheeler and Batson [Batson v. Kentucky (1986) 476 U.S. 79, 89, 106 S.Ct. 1712, 1719, 90 L.Ed.2d 69], ‘ “[i]f a party believes his opponent is using his peremptory challenges to strike jurors on the ground of group bias alone, he must raise the point in timely fashion and make a prima facie case of such discrimination to the satisfaction of the court.   First, ․ he should make as complete a record of the circumstances as is feasible.   Second, he must establish that the persons excluded are members of a cognizable group within the meaning of the representative cross-section rule.   Third, from all the circumstances of the case he must show a strong likelihood that such persons are being challenged because of their group association.” ’ ”   (People v. Turner (1994) 8 Cal.4th 137, 164, 32 Cal.Rptr.2d 762, 878 P.2d 521, internal citations omitted, italics in original.)

“There is a presumption that a prosecutor uses his or her peremptory challenges in a constitutional manner.”  (Ibid.;  People v. Clair (1992) 2 Cal.4th 629, 652, 7 Cal.Rptr.2d 564, 828 P.2d 705;  People v. Rousseau (1982) 129 Cal.App.3d 526, 536, 179 Cal.Rptr. 892.)

 “[W]hen a trial court denies a Wheeler motion without finding a prima facie case of group bias the reviewing court considers the entire record of voir dire.  [Citations.]  As with other findings of fact, we examine the record for evidence to support the trial court's ruling.   Because Wheeler motions call upon trial judges' personal observations, we view their rulings with ‘considerable deference’ on appeal.  [Citations.]  If the record ‘suggests grounds upon which the prosecutor might reasonably have challenged’ the jurors in question, we affirm.  [Citation.]”  (People v. Howard (1992) 1 Cal.4th 1132, 1155, 5 Cal.Rptr.2d 268, 824 P.2d 1315;  People v. Mayfield (1997) 14 Cal.4th 668, 723, 60 Cal.Rptr.2d 1, 928 P.2d 485;  People v. Crittenden (1994) 9 Cal.4th 83, 114-119, 36 Cal.Rptr.2d 474, 885 P.2d 887.)

There is good reason for an appellate court to defer to the trial court's no prima facie case ruling.  “[T]he trial judge, who had observed the voir dire, was in the best position to determine under ‘all the relevant circumstances' of the case whether there was a ‘ “strong likelihood” ’ these prospective jurors were being challenged ‘because of their group association.’ ”  (People v. Davenport (1995) 11 Cal.4th 1171, 1201, 47 Cal.Rptr.2d 800, 906 P.2d 1068.)

These “relevant circumstances” are varied, subtle, often visual and untranscribable, evanescent, and subjective.  (People v. Jackson (1996) 13 Cal.4th 1164, 1197, 56 Cal.Rptr.2d 49, 920 P.2d 1254 [“ ‘the variety of [subjective] factors and considerations,’ including ‘prospective jurors' body language or manner of answering questions,’ which legitimately inform a trial lawyer's decision to exercise peremptory challenges.' ”];  People v. Turner, supra, 8 Cal.4th 137, 165, 32 Cal.Rptr.2d 762, 878 P.2d 521 [“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.”];  People v. Montiel (1993) 5 Cal.4th 877, 910, 21 Cal.Rptr.2d 705, 855 P.2d 1277, fn. 9 [“[P]eremptory challenges are available against individual jurors ․ even for trivial reasons.”];  People v. Johnson (1989) 47 Cal.3d 1194, 1215-1216, 255 Cal.Rptr. 569, 767 P.2d 1047 [“Indeed, even less tangible evidence of potential bias may bring forth a peremptory challenge:  either party may feel a mistrust of a juror's objectivity on no more than the ‘sudden impressions and unaccountable prejudices we are apt to conceive upon the bare looks and gestures of another’ [citation]-upon entering the box the juror may have smiled at the defendant, for instance, or glared at him.”].)

 It is the trial court's responsibility, when a Wheeler motion is made, to consider “all the relevant circumstances of the case,” whether or not articulated by the moving party.  (People v. Howard, supra, 1 Cal.4th 1132, 1155, 5 Cal.Rptr.2d 268, 824 P.2d 1315 [“Nor should the trial court blind itself to everything except defense counsel's presentation.   Indeed, we have emphasized that such rulings require trial judges to consider ‘all the circumstances of the case’ [citation] and call upon judges' ‘powers of observation, their understanding of trial techniques, and their broad judicial experience.’ ”].) No less, it is the responsibility of the reviewing court-regardless of the adequacy or inadequacy of counsel's presentation-to “consider[ ] the entire record of voir dire.”  (Ibid.)

We have considered the entire record of voir dire and “all the relevant circumstances of the case” and conclude the trial court's ruling appellant had failed to show a prima facie case-was correct.   We explain.

 It was appellant's duty to make his Wheeler motion “in timely fashion.”  (People v. Turner, supra, 8 Cal.4th 137, 164, 32 Cal.Rptr.2d 762, 878 P.2d 521.)   He failed to do so.   The prosecutor excused two Hispanic jurors, Ms. Cruz Diaz and Cornelia Garcia.   After Ms. Garcia was excused eight more jurors were excused, three by the prosecutor, before appellant made his Wheeler motion.   Such delay thwarts effective consideration of all relevant circumstances and potentially wastes judicial resources.

 It was also appellant's duty to “make as complete a record of the circumstances as is feasible ․ [and] show a strong likelihood that such persons are being challenged because of their group association.”  (People v. Turner, supra, 8 Cal.4th 137, 164, 32 Cal.Rptr.2d 762, 878 P.2d 521.)   He failed to do so.   That the trial court interrupted counsel-interruptions of or by counsel are hardly uncommon-is no excuse.   The trial court (patient to the point of indulgence throughout voir dire and trial) did not order counsel to be quiet, to cease argument, or not to renew his motion.   Counsel could have filed an affidavit with the trial court (see People v. Motton (1985) 39 Cal.3d 596, 217 Cal.Rptr. 416, 704 P.2d 176) but failed to do so.

 The relevant circumstances, at the time of the Wheeler motion, included the following:  the prosecutor had used two of seven peremptory challenges to excuse Hispanic jurors;  the defendant was African American, not Hispanic;  and appellant had used two of eight peremptory challenges to excuse Hispanic jurors.   These circumstances do not constitute a prima facie case.   (People v. Davenport, supra, 11 Cal.4th 1171, 47 Cal.Rptr.2d 800, 906 P.2d 1068 [Three of six jurors excused by the prosecutor were Hispanic.   No prima facie case.];  People v. Turner, supra, 8 Cal.4th 137, 32 Cal.Rptr.2d 762, 878 P.2d 521 [Defendant was Black, victims White.   Four of six jurors excused by the prosecutor were Black.   No prima facie case.];  People v. Allen (1989) 212 Cal.App.3d 306, 260 Cal.Rptr. 463 [Six of fourteen jurors excused by the prosecutor were Black.   No prima facie case.];  People v. Mayfield, supra, 14 Cal.4th 668, 60 Cal.Rptr.2d 1, 928 P.2d 485 [Three of five jurors excused by the prosecutor were African American.   No prima facie case.];   People v. Rousseau, supra, 129 Cal.App.3d 526, 179 Cal.Rptr. 892 [There were two Blacks on the jury panel.   The prosecutor excused both.   No prima facie case.].)

Immediately after the trial court denied appellant's Wheeler motion appellant excused Jesutito Soriano, the third Hispanic juror he had excused.   At selection's end, it appears the prosecutor had excused two Hispanic jurors and appellant had excused three Hispanic jurors.

Not only does the record fail to suggest a motive for the prosecutor to excuse Hispanic jurors when prosecuting an African American defendant but, in this case, it appears the prosecutor had reason to retain them and appellant had reason to excuse them.   The reason is this:  the prosecutor introduced appellant's former testimony in which he pointed the finger at unnamed “Hispanic guys” who burglarized the Smiths' residence and stole their jewelry, a story not likely to be appreciated by Hispanic jurors.

When the Wheeler motion was made the prosecutor had excused seven jurors (Akos Horvath, Ms. Cruz Diaz, Sally Smith, Cornelia Garcia, William Walsh, Ms. Edorne Angco, and George Holling).   Two were Hispanic.   Specific bias (not racial bias) justified excusing both.

 Ms. Cruz Diaz had been a repeated crime victim and according to the prosecutor “sounded really bitter when she talked about her crimes.”   Ms. Diaz had been mugged, burglarized twice, and had her car stolen.   When questioned at the bench she appeared critical of the police.   The prosecutor had good reason to excuse her.  (People v. Turner, supra, 8 Cal.4th 137, 171, 32 Cal.Rptr.2d 762, 878 P.2d 521.)

 Cornelia Garcia's brother had been arrested for growing marijuana and was “in court now,” had been a drug user and was in drug counseling.   The prosecutor had good reason to excuse her.  (People v. Allen, supra, 212 Cal.App.3d 306, 312, 260 Cal.Rptr. 463.)

We find appellant's contention without merit.

We also find appellant's related contention that “the trial court's refusal to allow defense counsel to establish a prima facie case of Wheeler error denied appellant his right to assistance of counsel” without merit.   There was no “refusal” and we have fully considered the substance of appellant's Wheeler motion.

2.-6.***

DISPOSITION

The judgment reflects a “667.5(B)” enhancement which is stayed.   Since the jury made no finding concerning this enhancement the reference to a “667.5(B)” enhancement is ordered stricken from the judgment.

As corrected, the judgment is affirmed.

I respectfully dissent.   In my view, the trial court committed reversible error in refusing to hear defendant's Wheeler motion as to the prosecution's exclusion of Hispanic jurors because defendant himself had excluded Hispanic jurors.

The record shows during the course of jury selection counsel for the parties approached the bench and the following colloquy took place between defense counsel and the court.

Mr. Mandel [counsel for defendant]:  I am concerned.   The panel has no Hispanics on it.   There appears to be three Hispanics against whom literally-

The Court:  You have knocked off two Hispanics.  * * *.

Mr. Mandel:  There were reasons for that.

The Court:  I don't find a prima facie case.

Mr. Mandel:  Can I at least make a-

The Court:  I don't find a prima facie case.   I don't need a showing to go forward.

Mr. Mandel:  Three out of the seven that were Hispanic, and that's a large percentage of-

The Court:  You have excused two.

Mr. Mandel:  I understand.

The Court:  I find no prima facie case.

I conclude from this colloquy the trial court erroneously believed defendant was precluded from making a Wheeler motion as to the prosecution's exclusion of Hispanic jurors because defendant himself had used peremptory challenges to exclude Hispanic jurors.   The fact the party making a Wheeler motion may have exercised challenges against the same cognizable group “is irrelevant.”  (People v. Motton (1985) 39 Cal.3d 596, 604, 217 Cal.Rptr. 416, 704 P.2d 176.)   Furthermore, “the propriety of the prosecutor's peremptory challenges must be determined without regard to the validity of the defendant's own challenges.”  (People v. Snow (1987) 44 Cal.3d 216, 225, 242 Cal.Rptr. 477, 746 P.2d 452.)

Moreover, the colloquy quoted above shows the trial court prevented defense counsel from even attempting to show a prima facie case of group bias on the part of the prosecution.5  I do not agree with the majority an attorney has to push a matter to the verge of being held in contempt in order to establish the court is refusing to allow him to make a record.   The trial judge had made it quite clear she would not hear defendant's attempt to state a prima facie case.6

The combination of these two errors requires reversal of the judgment because we cannot determine from the cold record whether the errors were harmless.

The majority attempts to solve the issue of prejudice by reviewing the entire record of voir dire and “all the relevant circumstances of the case.”   The majority concludes “the trial court's ruling appellant had failed to show a prima facie case-was correct.”   I disagree with the majority's approach and its conclusion.

In the normal situation, “when a trial court denies a Wheeler motion without finding a prima facie case of group bias the reviewing court considers the entire record of voir dire.  [Citations.]  As with other findings of fact, we examine the record for evidence to support the trial court's ruling.”   (People v. Howard (1992) 1 Cal.4th 1132, 1155, 5 Cal.Rptr.2d 268, 824 P.2d 1315.)   But here we do not have the normal situation.   Here the trial court did not rule appellant had failed to show a prima facie case nor did it make any findings of fact, express or implied.   Instead, the court denied the motion on the ground defendant was estopped from challenging the prosecution's exclusion of Hispanics because he himself had excluded Hispanics.7

The majority's solution to the absence of a ruling and findings is to make them itself.   This approach is wrong for several reasons.

As a result of the trial court's refusal to allow defendant to make his Wheeler motion, we have an incomplete record for review.   For example, we know the defendant based his motion, in part, on the prosecution's excluding three Hispanic jurors, but we don't know which jurors those were.8  Nor do we know what factors, besides numbers, defense counsel might have relied on in proving a prima facie case had he been given the opportunity.

Furthermore, it is not possible for us, as appellate judges, to consider “all the relevant circumstances of the case.”   As our Supreme Court has explained:

“[A Wheeler motion] requires trial judges to make difficult and often close judgments.   They are in a good position to make such determinations, however, on the basis of their knowledge of local conditions and local prosecutors.   They are also well situated to bring to bear on this question their powers of observation, their understanding of trial techniques, and their broad judicial experience.”

(People v. Sanders (1990) 51 Cal.3d 471, 501, 273 Cal.Rptr. 537, 797 P.2d 561;  italics added;  citations and internal quotes omitted.)   While appellate judges may have an “understanding of trial techniques” and “broad judicial experience,” we do not have “knowledge of local conditions and local prosecutors” nor have we observed the jurors during the voir dire process.   We have only the cold record and the cold record is not enough.   As one court put it:  “The first line of defense against the invidious use of peremptory challenges must be the trial court.   This is true because the trial court is in the best position to determine from ‘all the circumstances,’ both those which appear in the record and those which do not, whether a party is using its peremptory challenges improperly.   It is for these reasons that a trial court's decision is entitled to such great deference.”  (People v. Trevino (1997) 55 Cal.App.4th 396, 409-410, 64 Cal.Rptr.2d 61.)

There is yet another reason why we should only review Wheeler rulings, not make them.   To do the job properly in the present case we would have to digest approximately 100 pages of transcript and then conduct a sort of “moot court” exercise in which we try to make the best prima facie case we can for the defendant, try our hardest to rebut it on behalf of the People and then determine which side prevails.   This is not our role nor should it be.   Our role as an appellate court is to review the record to see if there is substantial evidence to support the trial court's finding of no prima facie case.  (People v. Howard, supra, 1 Cal.4th at p. 1155, 5 Cal.Rptr.2d 268, 824 P.2d 1315.)   The Supreme Court has never said that where the trial court has failed to make such a finding we should make one for it.

For the reasons set forth above, I would reverse the judgment.

FOOTNOTES

1.   The jury found appellant not guilty of count I, receiving stolen property.

2.   It was separately alleged appellant had been convicted of burglary and served a state prison term. (§ 667.5, subd. (b).)  The jury was not asked to and did not make a finding regarding this allegation.   We shall correct the judgment accordingly.

3.   On June 2, 1995, Mr. Sbicca's City of Monrovia apartment (about a block from appellant's apartment) was burglarized and jewelry was stolen.   The next day appellant and his girlfriend, Susan Thibodeau, walked to the Silver Tree Jewelry store.   Ms. Thibodeau entered alone and left jewelry stolen from Mr. Sbicca's apartment to be repaired and cleaned.   Ms. Thibodeau left the jewelry store, rejoined appellant, at which time uniformed officers arrested them.An information charged appellant and Ms. Thibodeau with receiving stolen property on June 3, 1995, and appellant alone with receiving stolen property on April 18, 1995, and May 19, 1995.But an amended information deleted the June 3, 1995, charge and removed Ms. Thibodeau as a defendant.   On March 8, 1996, Ms. Thibodeau pleaded guilty to receiving stolen property but the record does not disclose whether the property was Mr. Sbicca's.

4.   At this proceeding the certified transcript of appellant's plea bargained guilty plea was introduced.   Appellant pleaded guilty to five counts of residential burglary (committed in 1985 on August 22, August 24, November 13, and November 22) in exchange for the dismissal of a sixth residential burglary charge, a promise that other burglary charges under investigation would not be filed, and a sentence commitment of six years in state prison.

FOOTNOTE.   See footnote *, ante.

5.   In contrast, when the People made a Wheeler motion claiming the defendant was unlawfully excluding caucasians the court allowed the prosecutor to identify the excluded jurors, review their voir dire responses and argue her motion without interruption before finding no prima facie case.

6.   On one point I agree with my colleagues.   Faced with the trial court's refusal to allow defense counsel to make an oral showing of group bias, counsel should, if possible, file a written motion accompanied by an affidavit setting out the facts defendant contends show a prima facie showing of group bias.  (Cf. People v. Motton, supra, 39 Cal.3d at p. 604, 217 Cal.Rptr. 416, 704 P.2d 176;  Di Donato v. Santini (1991) 232 Cal.App.3d 721, 730, 283 Cal.Rptr. 751.)   Defense counsel could not do this in the present case, however, because jury selection was completed that afternoon.  (People v. Gore (1993) 18 Cal.App.4th 692, 703, 22 Cal.Rptr.2d 435, [Wheeler motion must be made “at the latest, before jury selection is completed.”] )

7.   I find this interpretation of the court's ruling is most consistent with the overall context of the colloquy between the court and defense counsel.   Of course, if the court meant by its statement-“I don't find a prima facie case.   I don't need a showing to go forward.”-it was ruling on the merits before counsel could even present his motion this would also be reversible error.

8.   The majority attempts to solve this problem by assuming two of these jurors were Ms. Diaz and Ms. Garcia and the defense was simply mistaken in claiming there was a third Hispanic juror.   But the fact a female juror has an Hispanic surname does not mean she is of Hispanic descent anymore than the fact a female juror has an “anglo” surname means she is not of Hispanic descent.

FRED WOODS, Associate Justice.

LILLIE, P.J., concurs.