PEOPLE v. VALLE

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Court of Appeal, Fourth District, Division 3, California.

The PEOPLE, Plaintiff and Respondent, v. Ruben M. VALLE, Defendant and Appellant.

No. G003912.

Decided: January 30, 1989

J. Courtney Shevelson, Carmel, under appointment by the Court of Appeal, for defendant and appellant. John K. Van de Kamp, Atty. Gen., Steve White, Chief Asst. Atty. Gen., Jeffrey Koch and M. Howard Wayne, Deputy Attys. Gen., for plaintiff and respondent.

OPINION

Ruben Valle was convicted of second degree murder, vehicular manslaughter and grand theft auto. He led police on a high speed chase in a stolen van that collided with a car carrying two teenage boys. Both young men died. Valle's blood tested free of drugs and alcohol. The defense contended he was psychotic at the time and failed to appreciate the life-threatening nature of his actions.

Valle argues he is entitled to a per se reversal because the prosecutor unjustifiably used peremptory challenges to empty the jury of ethnic and racial minorities. He also maintains his post-arrest statements to police were involuntary and taken in violation of Miranda.1 We agree with two of his contentions and reverse.

I

The right to trial by jury guaranteed in the Sixth Amendment to the federal Constitution and article I, section 16 of the California Constitution requires the jury “be drawn from ‘a representative cross-section of the community.” ’ (People v. Wheeler (1978) 22 Cal.3d 258, 266, 148 Cal.Rptr. 890, 583 P.2d 748, fn. omitted.) This constitutional mandate occasionally clashes with litigants' statutory right “to [peremptorily] remove jurors who are believed to entertain a specific bias․” (Id., at p. 274, 148 Cal.Rptr. 890, 583 P.2d 748.)

In Wheeler, the Supreme Court held exercising peremptory challenges on the basis of group bias violates the right to a jury drawn from a representative cross-section of the community. The majority drew the constitutional line between permissible and impermissible peremptory challenges as follows: “[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.” (Id., at p. 275, 148 Cal.Rptr. 890, 583 P.2d 748.) Such challenges are constitutionally sound because they “share a common element: they seek to eliminate a specific bias as we have defined that term herein—a bias relating to the particular case on trial or the parties or witnesses thereto. By the same token, they are essentially neutral with respect to the various groups represented on the venire․ [¶] By contrast, when a party presumes that certain jurors are biased merely because they are members of an identifiable group distinguished on racial, religious, ethnic, or similar grounds—we may call this ‘group bias'—and peremptorily strikes all such persons for that reason alone, he ․ [¶] ․ violates the right to trial by a jury drawn from a representative cross-section of the community under article I, section 16, of the California Constitution.” (Id., at pp. 276–277, 148 Cal.Rptr. 890, 583 P.2d 748.) The United States Supreme Court recently expressed similar views—and reversed the conviction—in a case where it appeared the prosecution had systematically excluded black jurors. (Batson v. Kentucky (1986) 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69.)

The California Supreme Court has declared the prosecuting attorney shares responsibility with the trial court to preserve “a defendant's cross-sectional rights․” (People v. Trevino (1985) 39 Cal.3d 667, 680, 217 Cal.Rptr. 652, 704 P.2d 719; see also People v. Turner (1986) 42 Cal.3d 711, 727–728, 230 Cal.Rptr. 656, 726 P.2d 102 and People v. Hall (1983) 35 Cal.3d 161, 168–169, 197 Cal.Rptr. 71, 672 P.2d 854.) Accordingly, “the prosecutor must take care to exercise peremptory challenges for legitimate purposes only, ever mindful of the prosecutor's role as a representative of the state.” (People v. Trevino, supra, 39 Cal.3d at p. 682, 217 Cal.Rptr. 652, 704 P.2d 719.)

Obviously, Hispanics may not be systematically excluded from a jury panel (id., at p. 683, 217 Cal.Rptr. 652, 704 P.2d 719; People v. Harris (1984) 36 Cal.3d 36, 51, 201 Cal.Rptr. 782, 679 P.2d 433, cert. den. California v. Harris (1984) 469 U.S. 965, 105 S.Ct. 365, 83 L.Ed.2d 301), nor may daily wage earners or nonsupervisory, “blue collar” workers. (Thiel v. Southern Pacific Co. (1946) 328 U.S. 217, 225, 66 S.Ct. 984, 988, 90 L.Ed. 1181; People v. Turner, supra, 42 Cal.3d at p. 722, 230 Cal.Rptr. 656, 726 P.2d 102; People v. White (1954) 43 Cal.2d 740, 751, 278 P.2d 9, cert. den. White v. California (1955) 350 U.S. 875, 76 S.Ct. 120, 100 L.Ed. 774.) Systematic exclusion of a particular ethnic or economic group is prejudicial per se. (People v. Wheeler, supra, 22 Cal.3d at p. 283, 148 Cal.Rptr. 890, 583 P.2d 748.) And this is true where only one member of the panel is found to have been improperly challenged. (People v. Moss (1986) 188 Cal.App.3d 268, 277, 233 Cal.Rptr. 153.)

Given a defense prima facie showing of systematic exclusion based on group bias, the burden shifts to the prosecution: The state must now show the challenges were not racially motivated, but were made for legitimate reasons. (Batson v. Kentucky, supra, 476 U.S. at pp. 96–98, 106 S.Ct. at 1722–23; People v. Turner, supra, 42 Cal .3d at pp. 720–721, 230 Cal.Rptr. 656, 726 P.2d 102.) Appellate courts must “rely on the good judgment of the trial courts to distinguish bona fide reasons for such peremptories from sham excuses belatedly contrived to avoid admitting acts of group discrimination.” (People v. Wheeler, supra, 22 Cal.3d at p. 282, 148 Cal.Rptr. 890, 583 P.2d 748; see also Batson v. Kentucky, supra, 476 U.S. at p. 98, fn. 21, 106 S.Ct. at p. 1723 fn. 21.) Furthermore, “even when there is no doubt of the prosecutor's good faith, the issue whether a given explanation constitutes a constitutionally permissible—i.e., nondiscriminatory—justification for the particular peremptory challenge remains a question of law.” (People v. Turner, supra, 42 Cal.3d at p. 720, fn. 6, 230 Cal.Rptr. 656, 726 P.2d 102.)

II

Valle was born in Mexico and came to this country at the age of fifteen. At the time of the offense he was 22 years old and employed sporadically as a landscape gardener and factory worker.

On December 11, 1984, Valle stole a van in Santa Ana. The next day a Costa Mesa police officer saw Valle's erratic driving, radioed the dispatcher and found the van was stolen. When police activated their lights and sirens Valle took off at high speed into heavy traffic, careening through intersections, running red lights, passing cars on both left and right and barely missing a number of other vehicles. After miles of pursuit, Valle crashed into the Volkswagen occupied by the victims in this case. One boy died at the scene; the other expired at a hospital soon thereafter.2 Valle was bruised, cut and bloodied but otherwise unharmed. At the police department he gave a rambling, often nonresponsive account of his crimes to police.

During jury selection at Valle's trial the prosecutor announced he was excusing an Hispanic male, Mr. Leon. Defense counsel moved for a mistrial, declaring that “the prosecution has effectively eliminated all minorities when Mr. Leon is gone․” The court said some minority jurors had been excused for cause and asked counsel to name the panelists in question. Counsel said he objected to the prosecutor's excusing Mr. Leon, Ms. Mercado and Mr. Vo, who was Vietnamese.3

The Attorney General argues Valle may not raise the issue on appeal because the court failed specifically to state the defense had established a prima facie case of exclusion based on group bias. This is not required. Such a finding is implied where the court asks the prosecutor to explain his reasons for peremptory challenges. (People v. Turner, supra, 42 Cal.3d at pp. 718–719, 230 Cal.Rptr. 656, 726 P.2d 102.) Here, the trial judge, after hearing Valle's objections, noted, “Perhaps it's appropriate to hear from you, Mr. [prosecutor].”

In reply, the prosecutor challenged whether Mercado was Hispanic at all, saying the surname could be her husband's. The trial judge also professed an inability to detect whether this juror was Hispanic, and the defense never clarified her ethnicity by simply asking. As to Ms. Mercado, the defense failed to carry its burden of establishing her membership in a “cognizable group within the meaning of the representative cross-section rule.” (People v. Wheeler, supra, 22 Cal.3d at p. 280, 148 Cal.Rptr. 890, 583 P.2d 748.)

No such question was raised about Mr. Leon's ethnicity, however; the court and counsel all appeared to accept he was Hispanic. To justify his decision to challenge Leon, the prosecutor explained, “Mr. Leon, when he was called, volunteered to the court that he didn't think it would be appropriate to sit on this case because of his language difficulty, and because this case is going to require some highly technical evidence. It is for that reason, and that reason alone, that I exercised my peremptory on Mr. Leon.”

Leon said no such thing, nor does the record demonstrate any language difficulty. He merely wondered aloud if “my education is not sufficient for me to be in a jury box.” After the court reassured him there are no educational or training requirements to be a juror, Leon said he thought he would understand what the attorneys were talking about. At no time did he discuss either a language problem or trouble comprehending technical information, and the prosecutor never explored these issues. In fact, he never asked Leon a single question other than whether the prospective juror had a question for him.

But flimsy as these “reasons” are, they look downright substantial next to those advanced for excusing prospective juror Vo, who was Vietnamese. “Mr. Vo, I believe he was the Vietnamese individual. He has been in this country for years. Mr. Vo spoke with a very heavy accent, Vietnamese accent. [¶] I can represent to the court that I spent 18 months in southeast Asia in 1967 through 1969. It is my judgment, and also I can represent to the court that I was a biochemistry major at U.C.L.A., and I was into science, and I was dealing a lot with members of the Oriental race being in that field, and I felt that in my experience there is a very strong difficulty that Oriental people have in mastering the English language because their language is somewhat more logical in terms of their symbols, subjects, verbs, and when they come into the English language, because we have such an imperfect language, they have serious problems in understanding words that have abstract meanings to them. [¶] And the reason, and the only reason that I exercised my peremptory challenge on Mr. Vo, was that in this case we are going to have some highly technical evidence having to do with collision reconstruction, skid mark data. We're also talking about speeds. We're talking about various lane changes, and we're talking about a concept of implied malice that is defined in the English language, and it is for all of those reasons, because of the language, that I used my peremptory on Mr. Vo.”

The prosecutor's own remarks establish the very group bias decried in Wheeler. Vo was excused not because of his own language difficulty, but because “members of the Oriental race” could not master the abstractions of English. Depicting himself as something of an expert because of experiences in Vietnam and in college, the prosecutor made sweeping conclusions about the ability of all Asians to master English.4

The overwhelming impression of group bias is strengthened by the paucity of prosecutorial questioning of Vo: Was he born here (no), how long he had been in this country (10 years), did he have children (no), his occupation (mechanic), and how long he had been driving a car (6 years). The only additional inquiry was whether Vo understood the questions about circumstantial evidence (yes), and whether he was “comfortable with the language that has been going on here [sic]?” (“No problem.”) Nothing was asked about Vo's language skills or understanding of technical terms. And while the defense attorney's questions elicited an admission of nervousness and occasionally some poor grammar (which, we note, was certainly not limited to Vo), they, too, failed to elicit any inability to comprehend the proceedings.5

APPENDIX

Tuoc Vo, a prospective juror, responded to questions as follows:

Examination by Mr. King [prosecutor]:

“Q. Mr. Vo?

“A. Yeah.

“Q. Were you born in this country?

“A. No.

“Q. How long have you been in this country?

“A. Ten years.

“Q. Do you feel comfortable with the language that has been going on in court here?

“A. No problem.

“Q. Okay. Do you have any children?

“A. No.

“Q. And what is it that you do for a living?

“A. Mechanic.

“Q. Do you drive a vehicle?

“A. Yes, I do.

“Q. And how long have you been driving a vehicle?

“A. Six years.

“Q. For six years?

“A. Yeah.

“Q. Okay. Did you hear my questions having to do with circumstantial evidence?

“A. Yes, I did.

“Q. And did you have any questions or any problems with that?

“A. No.

“Q. Okay.

‘Tuoc Vo, a prospective juror, responded to questions as follows:

Examination by Mr. Horan [defense counsel]:'

“Q. Mr. Vo?

“A. Yeah.

“Q. I have a feeling that you're going to answer everything yes and no.

“A. No, I'm not.

“Q. Good. Ever been in trouble before?

“A. Once at home?

“Q. What happened?

“A. Well, I fell twice, broke my legs.

”Q. When you say home, do you mean in your homeland?

“A. No, in the United States.

“Q. Your fall?

“A. I think it was the tree's fault.

“Q. A branch break or—

“A. Yeah.

“Q. Nervous right now?

“A. Little bit.

“Q. How come?

“A. The first time here.

“Q. You get embarrassed or nervous talking in front of people?

“A. No.

“Q. Doesn't bother you?

“A. No.

“Q. See, you're saying too many no's now.

“A. Well, try not.

“Q. Okay. You're Vietnamese?

“A. Yes, I am.

“Q. Do you read in the paper that Vietnamese people, they've been in the news lately, unfortunately, for different types of crimes?

“A. Yes.

“Q. Is that true?

“A. Considerably.

“Q. Does that embarrass you; does that make you feel bad? How does it make you feel when you read about Vietnamese getting into trouble?

“A. I don't think anything at all. Every people live in this country, doesn't matter what kind of race, they get in trouble somehow. Anyway, it's only a small percentage.

“Q. If you read about a Vietnamese person getting into trouble you don't think it reflects on you?

“A. No.

“Q. When I use that word, you know what I mean, it reflects on you?

“A. Yes.

“Q. You think that's their business for them to work out?

“A. Yes.

“Q. You have children?

“A. No.

“Q. How long have you been married?

“A. Three years.

“Q. What kind of work do you do?

“A. Mechanic, work on cars.

“Q. Work on cars?

“A. Uh-huh.

“Q. Any special kind?

“A. Just mechanic.

“Q. Regular cars, not Volkswagon or BMW?

“A. Engine mechanic.

“Q. Are you good?

“A. One to ten, probably a six.

“Q. Ever have to go to small claims court because of a car?

“A. No, that's management problem.

“Q. It would be the manager's fault, huh? Have any feelings towards Mr. Valle right now as you sit here?

“A. Not at all.

“Q. Do you sympathize with him because he's from, say, oh, a minority such as you?

“A. Yeah.

“Q. Do you know what I mean by sympathize, feeling sorry for him or feeling feelings towards him?

“A. No.

“Q. No, you don't?

“A. Not at all.

“Q. Do you think you would bend over backwards for me because I represent somebody from a minority group?

“A. No, I try to be fair on both sides.

“Q. Do you think you'd get called to come up here; did you think you'd be called?

“A. No, not really.

“Q. Worried about money or anything like that at work because you're here?

“A. Well, I think they going to pay for it.

“Q. You think?

“A. Well, they told me they going to.

”Q. If I were to use the expression law and order, you have heard that before, law and order?

“A. No. Yeah.

“Q. Do you read the paper?

“A. Not often.

“Q. When you read the paper, do you ever read articles about robberies or murders and stuff like that?

“A. No, mainly on sports page.

“Q. Just sports page? Do you play sports?

“A. No.

“Q. Just interested?

“A. Yeah, especially Lakers and Rams games.

“Q. Who is Magic Johnson; what sport does he play?

“A. Basketball.”

The Attorney General maintains the prosecutor's lack of bias was shown by his not excusing a Vietnamese alternate, Mr. Trinh. We have several observations. First, Trinh was the last juror called from the whole venire. Excusing him would have meant beginning the entire voir dire anew—a terrible inconvenience for everyone. Second, Trinh was the third alternate selected for a relatively short (several days) trial. And the prosecutor would not accept Trinh until the trial court agreed that if the alternates were needed they would be seated not by lot—as the defense requested—but in order.6 With this assurance, the likelihood Trinh would ever be seated was remote. Finally, Trinh's selection followed hot on the heels of the defense Wheeler challenge. The prosecutor had a strong motive to retain Trinh in order to rebut the suggestion his earlier decisions were racially motivated—particularly if he could be fairly certain Trinh would never actually participate in deciding the case.

All things considered, we cannot say Trinh's retention as third alternate juror dispels the blatant, clearly stated group bias given as the reason for excusing Vo. In summary, the trial court erred as a matter of law in finding the prosecutor's proffered reasons adequately rebutted the prima facie case established by the defense with respect to both Leon and Vo. The error is prejudicial per se. (People v. Wheeler, supra, 22 Cal.3d at p. 283, 148 Cal.Rptr. 890, 583 P.2d 748.)

III ***

The JUDGMENT IS REVERSED.

FOOTNOTES

1.  (Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694.)

2.  Both were of Caucasian, Anglo extraction. As explained in People v. Wheeler, supra, 22 Cal.3d at p. 281, 148 Cal.Rptr. 890, 583 P.2d 748: “[T]he defendant need not be a member of the excluded group in order to complain of a violation of the representative cross-section rule; yet if he is, and especially if in addition his alleged victim is a member of the group to which the majority of the remaining jurors belong, these facts may also be called to the court's attention.”

3.  Another panelist, Mr. Boosalis, was also mentioned but he had already left and the court was unable to determine if he was a member of an ethnic minority.

4.  One infers naturalized Europeans, even those with heavy accents, would probably be qualified to serve; after all, “they” do not suffer from the handicaps presumably visited upon all Asians.

5.  For instance, when asked how he felt upon reading about Vietnamese who get in trouble here, Vo answered, “I don't think anything at all. Every people live in this country, doesn't matter what kind of race, they get in trouble somehow. Anyway, it's only a small percentage.” When asked by defense counsel whether he would “bend over backwards for me because I represent somebody from a minority group,” Vo said, “No, I try to be fair on both sides.”The entire voir dire examination of Vo by both the prosecutor and defense counsel is included in the appendix.

6.  This procedure appears to violate Penal Code section 1089, which provides for the court to “draw” the name of an alternate in the event a juror is excused for cause.

FOOTNOTE.  See footnote *, ante.

WALLIN, Associate Justice.

CROSBY, Acting P.J., and SILLS, J.†, concur.