People v. Perez

California Court of Appeal Aug 26, 1996 No. D023016Published

Before: McIntyre

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Holding. The court held that the defendant's Wheeler motion was untimely because it was raised after the jury and alternates were sworn, and that the defendant failed to establish a prima facie case of group bias in the prosecutor's use of peremptory challenges.

Issues

Whether a Wheeler motion made after the jury and alternates have been sworn is timely.
Whether the defendant established a prima facie case of group bias in the prosecutor's use of peremptory challenges against two Hispanic jurors.

Disposition. affirmed

Quotations verified verbatim against the opinion

“an objection first raised after the jury and alternates have been sworn is untimely.”

“Perez failed to make a prima facie showing that the jurors were dismissed because of an impermissible group bias.”

“we conclude Perez failed to establish a prima facie case of discrimination because he failed to show a strong likelihood that Elizabeth C. and Julie G. were excused because of their group association rather than because of any specific bias.”

Opinion

McINTYRE, J.

A jury convicted Porfirio Sanchez Perez of attempted murder, shooting at an occupied motor vehicle, unlawful driving or taking of a vehicle, evading a peace officer with reckless driving, and possession of a firearm by a felon. In addition, the jury found true allegations that the offense of attempted murder was willful, deliberate and premeditated, and that Perez personally used a firearm in the commission of these offenses.

The court found Perez had suffered two prior serious felony convictions and had served two prior prison terms. The court declined to strike any of Perez’s prior convictions, concluding it did not have such authority, and indicated it would not strike them even if it could. Accordingly, the court sentenced Perez to prison for a term of 42 years to life, consisting of 25 years to life for attempted murder under the “three strikes” legislation, plus enhancements for using a firearm, 2 prior serious felony convictions, and 2 prior prison terms.

In the published portion of this opinion we address Perez’s contention that the court erred in denying his motion under

People

Wheeler

(1978) 22 Cal.3d 258 [148 Cal.Rptr. 890, 583 P.2d 748], by finding he had not

[1313]

established a prima facie case of group bias after the prosecutor had excused two Hispanic jurors.

We conclude the court did not err in denying Perez’s motion under

Wheeler

and did not err in sentencing Perez to a total of 42 years to life in prison, and affirm the judgment.

Facts

In May 1994, Perez was the passenger in a stolen Volkswagen Jetta involved in a high-speed chase with police. During the chase, many gun shots were fired from the Volkswagen at the pursuing patrol car. The vehicle eventually crashed into a parked car and the driver was ordered to get out with his hands up. At the same time, Perez got out of the passenger side, crouched down behind the car and then stood and raised his hands. After the driver was taken into custody, one of the police officers noticed a handgun underneath the Volkswagen and Perez was then taken into custody. Seven unexpended .38-caliber cartridges were found in Perez’s right front pants pocket.

People v. Perez

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