THE PEOPLE v. MICHAEL MILLER (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Appellant Michael Miller was convicted, following a jury trial, of two counts of first degree robbery in violation of Penal Code 1 section 211.   The jury found true the allegation that appellant personally used a firearm in the commission of the robberies within the meaning of section 12022.53, subdivision (b).  The trial court found true the allegations that appellant had suffered six prior serious felony convictions within the meaning of section 667, subdivision (a) and the “Three Strikes” law (sections 667, subdivisions (b) through (i) and 1170.12) and served four prison terms within the meaning of section 667.5, subdivision (b).  The trial court sentenced appellant to a term of 26 years to life under the Three Strikes law, plus ten years for the firearm use enhancement and two five-year enhancements for the prior serious felony convictions, for a total of 46 years to life in state prison.

Appellant appeals from the judgment of conviction, contending that the trial court erred in denying his Wheeler/Batson motion.²  We affirm the judgment of conviction.

Facts

On the evening of January 16, 2008, Ryan Wells, Arthur Ford, Jessica Coyle and Donna Coyle went to a bar in Hollywood.   They met appellant and his friend James.   Ford and Wells invited appellant and James back to their apartment.   Appellant and James accepted.   After about 10 to 15 minutes, appellant pulled a handgun from his waistband and ordered Ford and Wells to enter the bathroom and stay there.   Ford and Wells, who had been drinking and using marijuana, fell asleep.   When they awoke and left the bathroom, they discovered that the apartment had been ransacked, and guitars, movies, video games, computer equipment and comic books were missing.   The men called 911.

Discussion

Peremptory challenges may not be used to systematically exclude jurors because of membership in a cognizable group distinguished by racial, religious, ethnic or similar characteristics.  (People v. Wheeler, supra, 22 Cal.3d at p. 276;  see also Batson v. Kentucky, supra, 476 U.S. at p. 84.)

The trial court uses a three-step process to evaluate a defendant's claim that the prosecutor has impermissibly used a peremptory challenge in a discriminatory manner.  “First, the trial court must determine whether the defendant has made a prima facie showing that the prosecutor exercised a peremptory challenge based on race.   Second, if the showing is made, the burden shifts to the prosecutor to demonstrate that the challenges were exercised for a race-neutral reason.   Third, the court determines whether the defendant has proven purposeful discrimination.   The ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike.  [Citation.]”  (People v. Taylor (2009) 47 Cal.4th 850, 885–886.)   The California Supreme Court has encouraged trial courts to ask prosecutors for explanations of contested peremptory challenges, even in the absence of a prima facie showing.  (People v. Howard (2008) 42 Cal.4th 1000, 1019;  People v. Bonilla (2007) 41 Cal.4th 313, 343, fn. 13.)

“Review of a trial court's denial of a Wheeler/Batson motion is deferential, examining only whether substantial evidence supports its conclusions.”   (People v. Lenix (2008) 44 Cal.4th 602, 613, citing People v. Bonilla, supra, 41 Cal.4th 313, 341–342;  see also Hernandez v. New York (1991) 500 U.S. 352, 364–365.)  “We presume that a prosecutor uses peremptory challenges in a constitutional manner and give great deference to the trial court's ability to distinguish bona fide reasons from sham excuses.”  (People v. Lenix, supra, 44 Cal.4th at p. 614, quoting People v. Burgener (2003) 29 Cal.4th 833, 864.)

Here, after both parties had exercised several peremptory challenges and the defense had accepted the panel, the prosecutor used a peremptory challenge to excuse Juror No. 21, an African–American woman.   Appellant made a Wheeler/Batson motion, contending that the prosecutor had excused the juror because of her race.   Defense counsel's suspicion was aroused because Juror No. 21 was “dismissed after the prosecution has accepted her throughout the other challenges that she had․  It is only after we have accepted the panel as the defense that the prosecution has decided that, oh, no, I can't leave the only African American on the panel that is there.”   Cocounsel added that Juror No. 21 “didn't give any answers that made her look like somebody who would be undesirable.   She seemed to understand hypotheticals, et cetera.”   Appellant's counsel then said:  “If I may add one other thing.   It seems also that the prosecutor, if I may, as a class is excusing people that seem to be in their early 20's of which she is a group.”

Without making a finding as to whether the defense had made a prima facie showing, the court asked the prosecutor why he had excused Juror No. 21.   The prosecutor explained that he had two reasons.   First, he had challenged several younger jurors because they were living at home or were students and had “no real life experience.”   He believed that such people “really can't fathom that the outside world can be so cruel;  that two individuals can be robbed at gunpoint after meeting someone at a bar, which is our factual scenario.”   Juror No. 21 was a young woman who lived with her parents and sister and had no jury experience.

The prosecutor also stated:  “Additionally, number 21, as I'm sure the court recalls, I did spend sometime with her in dealing with my hypothetical.   After five to ten minutes in dealing with a couple hypotheticals in different circumstances, I still at this point don't know if she understands me.   If she understands what I was getting at.”   The prosecutor concluded by saying:  “At the end of the day I just wasn't sure if we were on the same page.   You take into consideration that she also has no life experience from what I can tell, living at home with her parents and her sister.   I want to say, my concern is that she's not going to understand that this is how the real world is, that things like this what we have in this case actually happened.   And I think that's a problem.”

The trial court denied the motion, saying “I don't find that the prosecutor –that the defense has made a prima facie case that there's been either dismissal of African Americans from this jury, and his reasons were based on [a] non [-]race based rationale that makes sense to me.   So your motion ․ is respectfully denied.”

Appellant contends that the court abused its discretion in finding that the prosecutor had provided a reasonable explanation for his dismissal of Juror No. 21, since he failed to explain why he excused other jurors who had difficulties with the hypotheticals or were young and inexperienced.

When, as here, “ ‘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 rulings with “considerable deference” on appeal.  [Citations.]  If the record “suggests ground upon which the prosecutor might reasonably have challenged the jurors in question, we affirm.  [Citation.]” ’ ”  (People v. Mayfield (1997) 14 Cal.4th 668, 723, quoting People v. Howard (1992) 1 Cal.4th 1132, 1155.)

Here, the prosecutor explained that she exercised a peremptory challenge against Juror No. 21 because she was both inexperienced and had trouble with the hypotheticals.   The jurors identified by appellant have only one of those characteristics.   Juror No. 3, Juror No. 10, and Juror No. 25 were young.   Juror No. 3 lived with her parents and Juror No. 25 was a student;  both lacked jury experience.   Thus, both lacked the real world experience that the prosecutor was looking for.   Neither had any problem with the prosecutor's hypotheticals, however.   Juror No. 10 was young, but had been robbed at gunpoint in the past and thus had the real world experience that the prosecutor was looking for.

Juror No. 6 and Juror No. 10 had difficulties with the prosecutor's hypotheticals.   Juror No. 10 made it onto the jury, while Juror No. 6 was not excused until the third round of peremptory challenges, and then by the defense.   Juror No. 10's age is not clear from the record, but he worked in construction and did not live at home, so he was not lacking real world experience.   We see no significance to the fact that the prosecutor did not excuse Juror No. 6 in the first round or two.   The defense did excuse that juror, and there is no way to know what the prosecutor would have done if defense counsel had not acted.   Further, although Juror No. 6 had difficulties with the prosecutor's hypotheticals, that juror was not young and had served on four to five juries, two in criminal cases.

In sum, the evidence of comparative juror analysis upon which appellant relies to establish Wheeler/Batson error simply does not stand up in the face of the prosecutor's race-neutral reasons for excusing Juror No. 21.  (People v. Lenix, supra, 44 Cal.4th at p. 625.)   We therefore conclude that the trial court did not err in denying appellant's Wheeler/Batson motion.

Disposition

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

We concur:

KUMAR, J.^*

FOOTNOTES

FN1. All further statutory references are to the Penal Code unless otherwise indicated..  FN1. All further statutory references are to the Penal Code unless otherwise indicated.

FN2. People v. Wheeler (1978) 22 Cal.3d 258;  Batson v. Kentucky (1986) 476 U.S. 79..  FN2. People v. Wheeler (1978) 22 Cal.3d 258;  Batson v. Kentucky (1986) 476 U.S. 79.

FOOTNOTE.  FN*.  Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

KRIEGLER, J.