THE PEOPLE v. JOSE ANTONIO BALTIERRA MURILLO

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Court of Appeal, Fifth District, California.

THE PEOPLE, Plaintiff and Respondent, v. JOSE ANTONIO BALTIERRA MURILLO, Defendant and Appellant.

F60095

Decided: January 17, 2012

Barbara Michel, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and R. Todd Marshall, Deputy Attorneys General, for Plaintiff and Respondent.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

OPINION

An 11–year–old girl at home asleep in her bed awoke to find her completely naked next-door neighbor, Jose Antonio Baltierra Murillo, holding her hands over her head and touching her inappropriately.   A jury found him guilty of a lewd or lascivious act during the commission of a first degree burglary.   On appeal, he argues that jury selection error requires reversal.   We affirm.

BACKGROUND

On March 12, 2010, a three-count second amended information charged Murillo with committing three crimes on November 24, 2008 – two counts of lewd or lascivious acts on children under the age of 14 (counts 1 & 2;  Pen.Code, § 288, subd. (a)) 1 and one count of first degree burglary (count 3;  §§ 459, 460, subd. (a)).  The information alleged that he perpetrated counts 1 and 2 during the commission of a first degree burglary with the intent to commit those acts (former § 667.61, subds. (c)(8), (d)(4)), that he committed those acts against more than one victim (former § 667.61, subds. (c)(8), (e)(5)), and that he served a prior prison term (§ 667.5, subd. (b)).2

On April 7, 2010, Murillo waived his right to trial by jury on the prison-term prior.   The next day, the jury returned the following verdicts:

Count 1:  Guilty as charged;  allegation of perpetration of the crime during commission of a first degree burglary true;  allegation of commission of lewd or lascivious acts against more than one victim not true;

Count 2:  Not guilty of the charged felony;  not guilty of the lesser included offense of misdemeanor battery (§ 242);

Count 3:  Guilty as charged.

Later that day, the court found the prison-term prior true.

On May 7, 2010, the court sentenced Murillo to an aggregate term of 26 years to life consisting of an indeterminate term of 25 years to life on count 1 (former § 667.61, subds. (a), (c)(8), (d)(4)), consecutive to a determinate term of one year on the prison-term prior (§ 667.5, subd. (b)), and imposed and stayed sentence on count 3 (§ 654).

DISCUSSION

Murillo claims the court “committed reversible error by failing to find a prima facie case of unlawful discrimination by the prosecution during jury selection.”   The Attorney General characterizes his argument as “specious.”

A prosecutor's use of peremptory challenges to excuse a prospective juror on the basis of group membership violates a criminal defendant's federal constitutional right to equal protection of the laws and state constitutional right to trial by a jury drawn from a representative cross-section of the community.  (People v. Gray (2005) 37 Cal.4th 168, 183–184;  14th Amend., U.S. Const.;   art.  I, § 16, Cal. Const.)

The crux of Murillo's argument is that in response to his attorney's “statistical disparity” challenge to the prosecutor's use of “five of his 10 peremptory challenges to strike Hispanics” the court found that the defense “had failed to make a prima facie case” but “did not ask the prosecutor for an explanation for his strikes” and instead made “the determination based on its own explanation.”   That, he argues, was reversible error.   To analyze whether the record shows a constitutional violation, we turn, first, to the record and, second, to the law.

After a day and a half of voir dire, Murillo's attorney made a Batson–Wheeler 3 motion outside the presence of the prospective jurors.   He stated that “50 percent” of the 10 peremptory challenges that the prosecution had exercised were of “Hispanic people” but acknowledged “that there is at least two remaining Hispanic people currently in the box.”   He added, “I don't know how many we have left of potential jurors, but it seems that it's a large number.”

The court inquired of Murillo's attorney whether, “other than the mere number,” there was “anything about the questioning or anything about these specific individuals other than their race” that led him to “believe that this was based on race as opposed to any other reason.”   He replied, “There was nothing that I heard.   Just basing it on the fact of the matter statistically that [the prosecutor] is using his peremptories on.”

The court, noting its duty “to make an initial determination whether or not there's a prima facie case” before “any determination as to whether the reasons are appropriate,” summarized the status quo as “a couple of Hispanics still remaining on the jury” with no information of which the court was aware “that race is an issue in the case.   Not all of the members of the identified ethnic group that is Hispanic are challenged.”

Disclaiming any knowledge of any “dispirit [sic ] voir dire as to the individuals excused versus other individuals,” the court expressed the belief that “the challenging party passed when individuals were still a member of the jury.”   Asked by the court for comment, the prosecutor noted “that there still remain in the box two Hispanics” he had not excused, who did “not constitute more than half the people” whom he had excused.   He noted that 10 of the 11 people the defense had excused were Caucasian.

After taking “a few minutes” to review notes with reference to “each of the challenged individuals to determine whether they differ materially from the individuals who remain unchallenged,” the court found there was no prima facie case and invited the prosecutor to make a record of his reasons for his peremptory challenges.   He addressed the stricken prospective jurors one by one.

Prospective juror “ * * * *26,” the prosecutor stated, “expressed to us in private that she had consensual sex when she was 12 years old with a 19 year old.   Did not appear to express any regret or remorse, at least that was my take on that.   She also seemed leery, maybe it's too strong of a word, but when she told the story of her own child making up lies that she specifically said something about being accused of feeding spiders or something to that effect to school officials.   I think jaundiced her view and made her more skeptical, perhaps not receptive to a child's testimony.”

Prospective juror “ * * * *47,” the prosecutor stated, had a discussion with him “either about reasonable doubt or circumstantial evidence” in which he said “he would want an absolute proof or something to that effect.   And my memory of it was he would not value or weigh circumstantial evidence equally as opposed to direct.   He wanted the case proved to him beyond a reasonable doubt that was a direct question to him.”

Prospective juror “ * * * *43,” the prosecutor stated, “did not have a high school education.   I would note that the 12 in the panel right now all have at least a high school education.   Also when I asked her what her reaction [sic ] when hearing the charges, she said that she had somewhat of an emotional response, which made me wonder if she could hear the evidence impartially.”

Prospective juror “ * * * *54,” the prosecutor said, was “similar to * * * *47.   I had a direct exchange with him and I don't recall if it was circumstantial [sic ] or reasonable doubt, but he at least in response to one of my answers to the questions indicated that he would not be able to follow the law.   And I don't recall off the top of my head if was [sic ] because he said he would not give equal weight to circumstantial evidence, or if he would need a higher burden of proof.   But there was a direct colloquy between him and myself.”   After the court added, “And an issue with one witness also,” the prosecutor responded, “And one witness, and that may have been what I was thinking of.”

Prospective juror “ * * * *33,” the prosecutor said, “spoke about a friend of hers, I don't remember which part it was, that there was a criminal case brought against an 18 year old for having sex with a 17 year old.   I questioned whether she did not answer directly the way her demeanor was when she spoke about it told me that she had some skepticism with the justice system with regards to prosecuting an 18 year old for having sex with a 17 year old.   I would also note that her phone went off while we were on the record which gave me cause and concern that she could follow Court's instructions.”

The prosecutor concluded, “Those are five of the six excused.”   Asked by the court if he wanted to be heard further, Murillo's attorney replied in the negative.   The next day, the jury was sworn without either party exercising any additional peremptory challenges.

On a Batson–Wheeler motion, “the issue is not whether there is a pattern of systematic exclusion;  rather, the issue is whether a particular prospective juror has been challenged because of group bias.”  (People v. Avila (2006) 38 Cal.4th 491, 549.)   At trial, the court and counsel follow a three-step constitutional analysis of peremptory challenges.   First, the defendant must make out a prima facie case by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose.   Second, if the defendant makes out a prima facie case, the burden shifts to the prosecution to give an adequate explanation of the peremptory challenges by offering permissible neutral justifications.   Third, if a neutral explanation is tendered, the court must decide whether the opponent of the peremptory challenges has proved purposeful discrimination.  (Johnson, supra, 545 US. at p. 168.)

With reference to the first of those three steps, the defendant must show “that under the totality of the circumstances it is reasonable to infer discriminatory intent.”  (People v. Kelly (2007) 42 Cal.4th 763, 779 (Kelly ).)   Certain types of evidence may be especially relevant.  (Id. at p. 779.)   The party may show that his or her opponent either struck most or all of the members of the identified group from the venire or used a disproportionate number of his or her peremptory challenges against the group.  (Ibid.) The party may demonstrate that the prospective jurors in question share only one characteristic – membership in the group – and that in all other respects they are as heterogeneous as the community as a whole.   (Ibid.) When appropriate, that showing may be supplemented by circumstances like the failure of the party's opponent to engage the prospective jurors at issue in more than desultory voir dire or to ask those prospective jurors any questions at all.  (Ibid.) Finally, the defendant need not be a member of the group at issue, but if he or she is, especially if the victim is a member of the group to which a majority of the remaining jurors belong, those facts are relevant, too.  (Id. at pp. 779–780.)

Murillo and the 11–year–girl were both members of the group at issue.   Even so, there is no showing that the five prospective jurors at issue shared only the characteristic of membership in that group but otherwise were as heterogeneous as the community as a whole.   To the contrary, just as the prosecutor's comments at the hearing on the motion warrant careful attention, so, too, as the record of voir dire shows, do the comments of those prospective jurors.

Prospective juror * * * *26 stated she that was not sure if she had child care since her regular nanny had accepted a new position from someone else, she had no family in the area, she had been laid off months ago, and she had not yet found new employment.   Three years ago, she was attacked by someone who made bodily contact with her trying to “kiss, lick, touch, things like that.”   At age nine, she found out her father had molested her three oldest half-sisters.   Although she thought nothing about those incidents would affect her ability to fairly decide the case, she said she was “expecting to hear both sides.   So I don't know if I'm going to be able to make a decision unless I hear both sides.”

Prospective juror * * * *47 said he had 10 years of experience as a court interpreter, mostly in criminal cases, two of which were sexual abuse cases “you just don't forget.”   He characterized sexual abuse cases without “definite proof that what is alleged actually happened, unless you have an eyewitness,” as “very nebulous,” “never clear,” and never “black and white.”   He acknowledged that he would have difficulty finding the defendant guilty if there were no eyewitness.   Asked whether anything in his experience with sexual abuse cases “might bring up some memories” in his mind, he said, “You know, the mind, you know, plays a lot of tricks.   It could or could not,” but he added that he thought he could listen to the evidence impartially.   As a burglary victim, he felt “powerless” and “helpless” but said he thought the experience would not affect his ability to serve as a juror.   He said he did not want to hear circumstantial evidence because, “if the case was real strong, air tight, there would be no need for that word.”   The prosecutor asked him whether, if he were to see someone “covered in moisture” and “shaking it off,” he would need to see it raining before he could believe it was raining outside.  “I want to see the rain,” he replied.   He was a law school graduate and an applicant for admission to the state bar.

Prospective juror * * * *43 said she had “some high school” and had four children, the youngest of whom, age eight, needs “plenty of attention.”   She felt “bothered” when the judge read the charges the defendant was facing.  “To hear something like that.   Like every other mother would feel or father, you know, with having two girls,” she said, but she said she thought she could be fair and impartial.

Prospective juror * * * *54 said jurors had to be “open minded and hear all the evidence” but when asked, “And what if you're convinced of half, is that going to be keeping your mind open to the other half?,” he said he “wasn't sure” if there were “three alleged convictions.”   When asked, “Three alleged accusations?,” he said, “I wasn't sure of the third one.”   The court interjected, “Third one is burglary.”   When asked if he would be “able to convict on the testimony of one witness provided you believed that witness,” he said he thought so, but he added, “I'd find it hard just believing that one witness.”   The prosecutor asked if there was nothing to contradict the witness, “Do you need more?”   He replied, “I think I do need more.”

Prospective juror * * * *33 said she had a “bladder problem” requiring her to limit water intake.  “I got a bad, bad problem,” she emphasized.  “Bad.” Asked if the jailing of an 18–year–old friend for molesting his 17–year–old girlfriend even though both consented would have any effect on her ability to fairly decide the case, she replied, “It's going to be hard.”

Here, the inquiry stops at the first step, since the court found no prima facie case of discriminatory purpose.4  Even so, our duty after denial of a Batson–Wheeler motion without a finding of a prima facie case is to consider the entire voir dire record before us.  (People v. Howard (1992) 1 Cal.4th 1132, 1155.)   Since Batson–Wheeler motions call on a court's personal observations, we give considerable deference to the court's rulings.   (Howard, supra, at p. 1155, citing, e.g., Batson, supra, 476 U.S. at p. 88.)   If the record suggests grounds on which the prosecutor reasonably might have challenged the prospective jurors at issue, our duty is to affirm.   (Howard, supra, at p. 1155.)

On the basis of our independent review, we conclude that the record reflects neutral grounds for the peremptory challenges at issue, not that the record supports an inference that the prosecutor excused the five jurors at issue for a discriminatory purpose.  (Johnson, supra, 545 U.S. at p. 168;  Kelly, supra, 42 Cal.4th at p. 779.)   The court did not err in denying Murillo's Batson–Wheeler motion.5

DISPOSITION

The judgment is affirmed.

Gomes, J.

WE CONCUR:

Wiseman, Acting P.J.

Cornell, J.

FOOTNOTES

FN1. Except as otherwise noted, later statutory references are to the Penal Code..  FN1. Except as otherwise noted, later statutory references are to the Penal Code.

FN2. A former version of section 667.61 was in effect at the time of the commission of the crimes.  (Amended by Initiative Measure (Prop. 83, § 12, approved Nov. 7, 2006, eff.   Nov. 8, 2006).).  FN2. A former version of section 667.61 was in effect at the time of the commission of the crimes.  (Amended by Initiative Measure (Prop. 83, § 12, approved Nov. 7, 2006, eff.   Nov. 8, 2006).)

FN3. Batson v. Kentucky (1986) 476 U.S. 79 (Batson );  People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler ), overruled in part by Johnson v. California (2005) 545 U.S. 162, 168 (Johnson )..  FN3. Batson v. Kentucky (1986) 476 U.S. 79 (Batson );  People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler ), overruled in part by Johnson v. California (2005) 545 U.S. 162, 168 (Johnson ).

FN4. Murillo argues, “The law is settled that once the defense has stated the reasons for the objection, the hearing progresses to stage two, the ‘explanation’ stage, where the prosecution may offer the reasons for the challenges.”  (Italics added.)   He is mistaken.  “Once the defendant makes the requisite showing, the burden shifts to the State to explain adequately the racial exclusion.”  (Batson, supra, 476 U.S. at p. 94, italics added.)  “The court's invitation to the prosecutor to state for the record his reasons for excusing the prospective jurors in question did ‘ “not convert [this] first-stage Wheeler/Batson case into a third-stage case.” ’ ”  (People v. Clark (2011) 52 Cal.4th 856, 908, fn. 13.).  FN4. Murillo argues, “The law is settled that once the defense has stated the reasons for the objection, the hearing progresses to stage two, the ‘explanation’ stage, where the prosecution may offer the reasons for the challenges.”  (Italics added.)   He is mistaken.  “Once the defendant makes the requisite showing, the burden shifts to the State to explain adequately the racial exclusion.”  (Batson, supra, 476 U.S. at p. 94, italics added.)  “The court's invitation to the prosecutor to state for the record his reasons for excusing the prospective jurors in question did ‘ “not convert [this] first-stage Wheeler/Batson case into a third-stage case.” ’ ”  (People v. Clark (2011) 52 Cal.4th 856, 908, fn. 13.)

FN5. After finding no prima facie case, the court, though not required to do so, commendably engaged in “the better practice” of having the prosecutor put on the record neutral explanations for his peremptory challenges to assist constitutional analysis both at trial and on appeal.   (People v. Bonilla (2007) 41 Cal.4th 313, 343, fn. 13.).  FN5. After finding no prima facie case, the court, though not required to do so, commendably engaged in “the better practice” of having the prosecutor put on the record neutral explanations for his peremptory challenges to assist constitutional analysis both at trial and on appeal.   (People v. Bonilla (2007) 41 Cal.4th 313, 343, fn. 13.)