PEOPLE v. WALKER (1984)

Larry Eugene Walker appeals from a judgment of conviction entered on a jury verdict finding him guilty of two counts of robbery (Pen.Code, § 211).² He asserts Wheeler error³ and error in denial of his motion for severance, his Wade-Gilbert⁴ motion, and his mistrial motion. He also claims sentence error. We find these contentions to be without merit and affirm the judgment.

Discussion

1. The Wheeler Motion

During trial defense counsel made a Wheeler motion, stating that of the prosecutor's five peremptory challenges, four had been against black jurors. The court declared the motion to be premature, but said that it would start taking notes on the matter. After further jury selection, counsel made a second Wheeler motion. Counsel's showing for the record was that out of the prosecutor's 11 peremptory challenges, 7 had been of black people, leaving only 2 black jurors remaining on the panel. The court ruled that defense counsel had made a prima facie case of systematic exclusion. The court stated that it understood some of the prosecutor's earlier challenges, but wondered about those made after the defense's first Wheeler motion, particularly the challenges to jurors Bailey and Harge.⁵

The prosecutor noted that after his first peremptory challenge of a black juror, he had twice passed the jury. Then, in response to the court's specific inquiries, he gave his reasons for excluding jurors Bailey, Harge and Burton. He stated that he was unable to recall why he challenged juror Castleberry because that challenge preceded defense counsel's first Wheeler motion, after which he began to make a note of his reasons. However, he could remember his reasons for excluding juror Thompson because he stood out as “a comic.”⁶ After the prosecutor stated his reasons, the court replied, “… I think it's the reason one of them—and I can't remember what one, whether it was Thompson or Castleberry, I completely agree with your evaluation of him. [[[[¶] There is one of those early ones, no matter what race or—or even what sex, that kind of personality, I was in accord with you.”

Declaring itself satisfied that there had not been any systematic exclusion of blacks, the court denied the Wheeler motion. Appellant contends that this ruling was reversible error.

In accordance with the procedure established in People v. Wheeler, supra, once the trial court rules that a defendant has made a prima facie case of group discrimination by use of peremptory challenges, the burden shifts to the prosecution to show that “the peremptory challenges in question were not predicated on group bias alone.” (22 Cal.3d at p. 281, 148 Cal.Rptr. 890, 583 P.2d 748.) To sustain his burden of justification, the prosecutor “must satisfy the court that he exercised such peremptories on grounds that were reasonably relevant to the particular case on trial or its parties or witnesses—i.e., for reasons of specific bias as defined herein [in Wheeler].” (Id., at p. 282, 148 Cal.Rptr. 890, 583 P.2d 748.) In determining whether the prosecutor has met his burden, the court's role is not a passive one. Rather, as the court stated in People v. Hall (1983) 35 Cal.3d 161, 197 Cal.Rptr. 71, 672 P.2d 854, the trial judge must make “a sincere and reasoned attempt to evaluate the prosecutor's explanation in light of the circumstances of the case as then known, his knowledge of trial techniques, and his observations of the manner in which the prosecutor has examined members of the venire and has exercised challenges for cause or peremptorily, for ‘we rely on the good judgment of the trial courts to distinguish bona fide reasons for such peremptories from sham excuses belatedly contrived to avoid admitted acts of group discrimination.”’ (Id., at pp. 167-168, 197 Cal.Rptr. 71, 672 P.2d 854.)

In light of the Supreme Court's repeated emphasis on the trial court's unique ability “to distinguish a true case of group discrimination by peremptory challenges from a spurious claim,” (People v. Wheeler, supra, 22 Cal.3d at p. 281, 148 Cal.Rptr. 890, 583 P.2d 748) and “to distinguish bona fide reasons for such challenges from sham excuses belatedly contrived” (id., at p. 282, 148 Cal.Rptr. 890, 583 P.2d 748; People v. Hall, supra, 35 Cal.3d at p. 168), we perceive our role in reviewing a trial court's ruling on the second or justification stage of a Wheeler motion to be limited to determining first, whether the trial court understood and fully discharged its Wheeler obligation to make “a sincere and reasoned attempt to evaluate the prosecutor's explanation,” (People v. Hall, supra, 35 Cal.3d at p. 168, 197 Cal.Rptr. 71, 672 P.2d 854; see People v. Clay (1984) 153 Cal.App.3d 433, 456, 200 Cal.Rptr. 269) and second, if so, whether substantial evidence supports the court's ruling.

In the present case it is clear to us that the trial court understood and discharged its obligation to take an active role in evaluating the prosecutor's good faith in explaining his challenges. After defense counsel's first Wheeler motion, the court took notes on each subsequent challenge to a black juror; the court stated its understanding of many of the challenges, but asked the prosecutor to justify those it questioned; the court expressly stated its full agreement with the prosecutor's reasons for one questioned challenge—that of either Thompson or Castleberry; and the court also noted that the prosecutor's questioning of each of the challenged black jurors had not been brief or cursory. As this experienced trial judge so aptly put it: “I look at Wheeler as really not setting up very technical criterion [sic] but rather what they look for, and that's the exclusion of groups and that I should use my common sense in whether or not I think that's been done.” Thus, unlike Hall, supra, the trial court here made “a sincere and reasoned attempt to evaluate the prosecutor's explanation” in light of the factors known to it at the time. (People v. Clay, supra, 153 Cal.App.3d at p. 456, 200 Cal.Rptr. 269.)

Second, we are satisfied that substantial evidence supports the court's determination that the prosecutor sustained his burden of justification. The record shows that the prosecutor's first peremptory challenge was to a white juror (Ms. Jacobsen), and his second was to a black (Mr. Jackson). With one black person still remaining on the panel (Ms. Burton), the prosecutor then passed the jury. Thereafter, without intervening challenge by the prosecutor and with two black persons on the jury (Ms. Burton and Mr. Thompson), the prosecutor again passed the jury. Further, while there was at least one black juror sitting in the box, and possibly two, the next three peremptory challenges exercised by the prosecutor were to white jurors.

The prosecutor's stated reasons for subsequently challenging jurors Bailey, Harge, Burton and Thompson are facially credible and reasonably show grounds for potential specific bias in relation “to the particular case on trial or its parties or witnesses”⁷ (People v. Wheeler, supra, 22 Cal.3d at p. 282, 148 Cal.Rptr. 890, 583 P.2d 748). These reasons, and the sequence of the prosecutor's challenges, were sufficient to permit the court to conclude that the prosecutor was not using his peremptory challenges to exclude jurors on grounds of group bias alone.⁸

Appellant, however, argues that in the absence of any explanation concerning the challenges of 3 of the 7 excluded black jurors (Castleberry, Jackson and Slater), the court was required to find that the prosecutor had not met his burden of justification. We disagree.

Although the prosecutor did not state his reasons for excluding jurors Slater and Jackson, the court did not question these challenges, the inference being that they were among the challenges which the court, based on its own observations, felt it understood. Thus, the only challenge for which an explanation was asked but not given pertained to Castleberry. Here, also, the record permits the inference that from its own observations the court was satisfied that the challenge was justified. Furthermore, the prosecutor's inability to furnish his reasons was attributed to a lack of recollection, explained by the fact that the challenge was made before he was put on notice by the defense's first Wheeler objection.

In the circumstances of this case, we do not believe that the prosecutor's failure of recollection concerning only one challenge—which happened to be one of the early challenges to a black juror—requires us to find as a matter of law that he did not meet his burden of justification. We would like to point out, however, that the prosecutor's required showing of justification will not be excused by the routine assertion of an inability to recall his reasons. To the contrary, in this post-Wheeler era, the prosecutor should be keenly aware that he may be required to justify peremptory challenges to members of a recognized cognizable group. Accordingly, when challenging jurors belonging to such groups, the prosecutor is well advised to make notes of his reasons so as to justify his challenge if required to do so.

We strongly agree with the court in People v. Ortega (1984), 156 Cal.App.3d 63, 202 Cal.Rptr. 657, that practical considerations dictate that the defendant make a Wheeler objection as early as possible.⁹ The benefits of such an early objection are illustrated by the instant case, where the defense's first Wheeler motion put the court and the prosecutor on notice and permitted them to make note of pertinent facts concerning subsequent challenges to members of the cognizable group.

The judgment is affirmed.

FOOTNOTES

2.  All further statutory references are to the Penal Code.

3.  People v. Wheeler (1978) 22 Cal.3d 258, 148 Cal.Rptr. 890, 583 P.2d 748.

4.  United States v. Wade (1967) 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149; Gilbert v. California (1967) 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178.

5.  Counsel's first Wheeler motion was made after the prosecutor had excluded four black jurors: Jackson, Thompson, Castleberry and Burton. Counsel's second Wheeler motion was made after the prosecutor's exclusion of three additional black jurors: Bailey, Harge, and Slater.

6.  The relevant part of the transcript is as follows:“THE COURT: Would you share with me your—some of those earlier ones, I could see. I don't have any problem but I sure don't understand—“MR. NELSON: Maybe I should. Do you want me to start with Mr. Robinson, the number 7?“THE COURT: Yes. Why don't you. The last one that was excused was Mr. Bailey.“MR. NELSON: That's Mr. Bailey. I'm sorry. That's the man—maybe I should start with him, Your Honor.“In this particular case maybe I should have taken him into chambers and excused him for cause. I asked Mr. Bailey if he had ever been a participant in a legal action. Mr. Bailey had been convicted of bribery before. He did not answer anything to me. He said, no, I have never been—he had been convicted of bribery. I think that's certainly a challenge for cause, but I used one of my peremptories to just not indicate any embarrassment for Mr. Bailey.“I didn't want anyone to know anything about it.“THE COURT: All right. What about the next one, going back, Mr. Morrell Harge?“MR. NELSON: Mr. Harge, there is two things about Mr. Harge, two reasons. Again, I don't think the record is clear. I don't think that the defense has met the burden that requires me to substantiate my exclusions, but under the court's desire, I will proceed.“Two things: Twice on breaks I saw Mr. Harge out in the hallway and in the vestibule. I didn't see him talking, but I saw him standing around with members of both—I don't know who they are, but they're friends or girlfriends or wives of either Mr. Walker or Mr. Vaughn's.“Furthermore, furthermore, one of the critical issues in this case is going to be identification and primarily, and particularly, and I hate to say this because it's going to pinpoint one of the issues that is somewhat unfair to my case, is going to be whether or not one or both of the suspects or the defendant in this case had a full beard.“There is a statement by one of my witnesses that the man that took her purse was clean shaven and the court can see very clearly that neither one of the individuals in court is clean shaven.“Mr. Harge had a full beard on. Mr. Harge is approximately the same age as both the defendants in this case. Mr. Harge was approximately the same size as both the defendants.“Based on those criteria, based upon his size, his age, his full beard and also upon what I saw him doing—not doing because he wasn't—I didn't see him talking and I can't represent to the court that I saw him doing that, but where he was standing separate from the other members of the panel.“I just did not feel comfortable with that individual serving on this jury.“THE COURT: All right. What was it about Cherry Burton?“…“MR. NELSON: The reason I excluded Miss Burton is because I anticipate that there will be testimony from, if not one defendant, both defendants from a female, either wife or girlfriend from that very close in age to Miss Burton, have a stake in, obviously, their either husband or friend's future, obviously, because of the criminal charges against them.“I thought in talking with Miss Burton I thought a great deal of empathy would be extended between her and potential alibi witnesses in this particular case.“Now, I do not know for a fact that the defendant is going to present any witnesses, but I do know that there are females who have been here during, throughout the course of the proceedings that are similar in age to Miss Burton.“I thought there would be a reason for her to empathize, to feel some type of affinity with any of those females who might take the stand.“I feel just uncomfortable with her in this regard.“I've seen in cases before that will involve it as an issue in the case. I did not feel that she would be a fair and impartial juror based upon that.“THE COURT: All right, but what about Castleberry? Let's see, Castleberry was number 1.“MS. SKEELS: Number 6.“THE COURT: Yes, he was number 1—I mean 6, 6, yes, 6. I'm sorry. The one up at the top on the far left there. I can recall but I'm not sure—“MR. NELSON: Your Honor, I don't, to tell you the truth, I don't recall other than what Miss Skeels [defense counsel] said after she brought to my attention those folks, those people that were excluded. I believe Mr. Castleberry was one of those people that was excluded before she brought to your attention and to my attention.“THE COURT: I think that's true. I think that's true, but—“MR. NELSON: I mean I can't tell you why I excluded some of the white people that I excluded before she brought—I mean after she made that point and brought it to our attention, after that, obviously, I have been made very acutely aware of reasons for excluding anyone.“THE COURT: All right. Is there anything further you want to bring to my attention?“MR. NELSON: Mr. Thompson is the only thing I do know about. Mr. Thompson, he was somewhat of a comic, but I just didn't feel comfortable at all with his comments. He's certainly a nice guy and he's a hard working citizen and so on like that, but I just would not feel comfortable with him and the record is not replete but it is covered with his comments. I just don't think he would be a good juror based on what he said on the jury.“I think the record does have those comments to you.“THE COURT: … All right.”

7.  See footnote 5, supra. It is also clear that juror Bailey could have been excused for cause, but the prosecutor did not want to embarrass him.

8.  The trial court noted “I do attach significance to the passing of the D.A. when there are blacks on and later perhaps excusing because I'm aware of the attitudes of trial lawyers, both prosecution and defense ․ [ [I]'m satisfied at this point that there has not been any pattern of excluding of a group; to wit, black people in this jury.” Two blacks ultimately served on the jury.

9.  As Justice Zenovich clearly stated in Ortega: “First, an early objection will facilitate the moving party's counsel in making the best possible prima facie case. Second, an early objection will place the opposing party on notice so that counsel may consider whether and on what basis to continue using peremptories against cognizable group members and to prepare to make the best explanation feasible. Third, an early objection will alert the court so that it can intelligently rule on the questions of prima facie case and, if one is found, explanations. In other words, this procedure will insure that the court will pay close attention to the questions asked of and answered by the jurors and other matters bearing on the use of peremptory challenges. The longer a party waits to make a Wheeler motion the less feasible it will be for the court to recall specific questions and answers and the demeanor of the jurors. [¶] Fourth, this procedure will promote the efficient and economic administration of justice by permitting the court, if it finds discrimination in the use of peremptory challenges, to dismiss the existing panel and obtain a new panel without having to wait until the selection process has been completed. [ [ [ [¶] Finally, this procedure will help the courts and the parties achieve the most fair and correct result, both below and on appeal. For example, in a case where a party is systematically excluding blacks, it is necessary that the record reflect that a challenged juror is, in fact, black. It is also important that the record reflect when no more blacks are left on the jury panel.”

PANELLI, Associate Justice.

POCHE, Acting P.J., and CALDECOTT, J.*, concur.