California Court of Appeal Sep 2, 2015 No. E059966Unpublished
Filed 9/2/15 P. v. Christian CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E059966
v. (Super.Ct.No. RIF1201183)
CORY MICHAEL CHRISTIAN, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Charles J. Koosed, Judge.
Affirmed.
Suzanne G. Wrubel, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,
Charles Ragland, Scott C. Taylor, Meredith S. White, and Christopher P. Beesley,
Deputy Attorneys General, for Plaintiff and Respondent.
1
I
INTRODUCTION
Appellant and defendant Cory Christian (defendant) and codefendant Vincent
Robert Avila, who is not a party to this appeal, were tried together and convicted of
kidnapping for robbery1 and carjacking.2 The jury found true as to both counts special
Here, the record of voir dire provides support for the prosecutor’s stated reasons
for exercising the peremptory challenges against the three jurors, and the trial court
sufficiently probed those reasons. The trial court’s remarks indicated the court was
skeptical of the prosecutor’s reasons for exercising the peremptory challenges,
appropriately examined the facts as disclosed by the jurors’ voir dire responses, and
evaluated the credibility of the prosecutor’s race-neutral reasons. We conclude, as
discussed below, the trial court met its obligation to make a sincere and reasoned attempt
to evaluate the prosecutor’s nondiscriminatory justifications offered, and the trial court’s
findings are supported by substantial evidence. (Long, supra, 189 Cal.App.4th at p. 845;
Silva, supra, 25 Cal.4th at p. 385.)
1. C.G.
Defendant argues the trial court failed to consider whether the prosecutor’s
reasons given for excusing C.G. were genuine, as opposed to pretextual. Defendant
argues this is apparent because the prosecutor’s reasons for excusing C.G. were
contradicted by the record. The prosecutor stated she excused C.G. because he was
young, over-eager, and unfocused.
The prosecutor explained to the court that C.G. was 18 years old and appeared
over-eager answering questions. He provided information that was not requested, which
made Drake nervous. The court asked how C.G. was over-eager. Drake said C.G.
answered questions that were not asked. The court asked for an example. Drake stated,
“Does everyone want to know how old I am? I’m 18.” Drake added she did not like
C.G.’s answers. She thought he was too young. The court asked Drake how that
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indicated C.G. would hold her to a higher standard. Drake responded that she was
required to prove several complicated elements and anticipated defense counsel would
raise numerous “red herrings,” things she did not “necessarily have to prove, to attempt to
mislead the jury into things they should focus on that are either irrelevant . . . or aren’t
elements of each crime. I don’t want a young, over-eager juror to take credence in those
things and to focus on things they don’t need to be focusing on. I want them to stay on
task. He appeared a little immature to me, young, and not focused on the questions that
were asked when I spoke with him.”
Although it is not apparent from the record that C.G. was over-eager and unable to
focus, these characteristics may be deduced based upon facial expressions and gestures,
which are not apparent from the record. (Lenix, supra, 44 Cal.4th at p. 613.) As our high
court noted in Lenix, “There is more to human communication than mere linguistic
content. On appellate review, a voir dire answer sits on a page of transcript. In the trial
court, however, advocates and trial judges watch and listen as the answer is delivered.
Myriad subtle nuances may shape it, including attitude, attention, interest, body language,
facial expression and eye contact. ‘Even an inflection in the voice can make a difference
in the meaning. The sentence, “She never said she missed him,” is susceptible of six
different meanings, depending on which word is emphasized.’ [Citation.] ‘[T]he manner
of the juror while testifying is oftentimes more indicative of the real character of his
opinion than his words. That is seen below, but cannot always be spread upon the
record.’ [Citation.]” (Lenix, supra, 44 Cal.4th at p. 622.)
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Furthermore, even if there was insufficient evidence C.G. was unable to focus, “an
isolated mistake or misstatement that the trial court recognizes as such is generally
insufficient to demonstrate discriminatory intent.” (Silva, supra, 25 Cal.4th at p. 385; in
accord People v. Williams (1997) 16 Cal.4th 153, 189.)
In addition, there was substantial evidence establishing that defendant was a very
young, inexperienced juror. C.G. stated he was 18 years old, single, in college, and had
never served on a jury. The prosecutor stated she was concerned that because of C.G.’s
youth, he might not understand complicated elements and be more easily misled by
irrelevant facts and argument. Avila’s attorney, Cohen, acknowledged during the
Wheeler motion hearing that she understood why the prosecution excused C.G.. Cohen
stated that C.G. seemed like an “eager, young juror.” Defendant’s attorney, Dorr, also
indicated C.G. appeared over-eager.
C.G.’s youth constituted a valid race-neutral reason for excluding a juror. The
California Supreme Court in People v. Sims (1993) 5 Cal.4th 405, 430, found no Wheeler
violation when a prosecutor exercised peremptory challenges to two jurors because one
was a youthful college student and the other juror was very young and appeared
immature. (In accord Perez, supra, 29 Cal.App.4th at p. 1328 [“Limited life experience
is a race-neutral explanation.”]; People v. Henderson (1990) 225 Cal.App.3d 1129, 1153
[young people do not constitute a cognizable class for Wheeler purposes]; see also People
v. Salcido (2008) 44 Cal.4th 93, 143.)
The record does not support defendant’s contention the trial court failed to inquire
to determine whether the prosecutor’s reasons for excusing C.G. were genuine or
19
improperly motivated. It was quite apparent and undisputed C.G. was a young juror.
Furthermore, the trial court asked the prosecutor several follow-up questions, including
asking for specific examples to support the prosecutor’s conclusions. The court asked
how C.G. was over-eager. The prosecutor said C.G. answered questions that were not
asked. The court asked for an example. The prosecutor stated, “Does everyone want to
know how old I am? I’m 18.” The court asked the prosecutor how that indicated C.G.
would hold her to a higher standard. The prosecutor responded that she was required to
prove several complicated elements and anticipated defense counsel would raise
numerous “red herrings” in an attempt to mislead the jury into focusing on irrelevant
factors.
Giving deference to the trial court’s findings, as we must, we conclude the trial
court made a sincere and reasoned effort to evaluate the prosecutor’s nondiscriminatory
justifications for excusing C.G. We also conclude there was substantial evidence to
support the trial court’s finding that the prosecutor’s race-neutral reasons were credible
and genuine, and insufficient evidence of pretext. While the record does not show C.G.
lacked focus, this alone, is an insufficient basis for this court to reject the trial court’s
factual finding there were race-neutral reasons for excluding C.G. There other reasons
for removing C.G. supported by substantial evidence, and this court must give deference
to the trial court findings on credibility.
2. D.S.
The prosecutor stated she excused D.S. because he was “very disinterested. He
would sit there looking down. He wouldn’t make eye contact. He appeared in a bad
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mood. He had a bad attitude when I spoke with him. That led me to wonder what -- . . .
issues, because I don’t know if he had an issue, what his problem was, . . . He concerned
me when Ms. Cohen asked him what are reasons that somebody may not take the stand
and his answer was ‘Misunderstood.’ And it just seemed like an odd answer to me,
something maybe in the back of his mind when he entered the courtroom. And when I
spoke with him, I just didn’t have a connection with him. I couldn’t get him to come out
of being grumpy. He just didn’t appear like he wanted to be here.”
The record shows there was substantial evidence that the prosecutor excused D.S.
based on the race-neutral demeanor-based justification, that D.S. was grumpy and
appeared to have a disinterested, bad attitude. The trial court acknowledged D.S.
appeared “somewhat grumpy.” Even though the court stated it did not find anything
wrong with D.S., the trial court appropriately focused on the subjective genuineness of
the prosecutor’s nondiscriminatory reason, rather than on its objective reasonableness
(Reynoso, supra, 31 Cal.4th at p. 924), and found that the prosecutor’s race-neutral
explanation was credible, sincere, and genuine. (Miller-El v. Cockrell (2003) 537 U.S.
322, 339.) “Since the trial court was in the best position to observe the prospective jurors
demeanor and the manner in which the prosecutor exercised his peremptory challenges,
the implied finding, that the prosecutor’s reasons for excusing [defendant], including the
demeanor-based reason, were sincere and genuine, is entitled to ‘great deference’ on
appeal. [Citations.] Nor have we found anything in the record to directly contradict the
trial court’s express findings to that effect.” (Reynoso, supra, 31 Cal.4th at p. 926.)
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Defendant argues the record contradicts the prosecutor’s explanation that when
she spoke to D.S., he had a bad attitude, he was grumpy, and D.S. had no connection with
him. Defendant asserts the prosecutor’s statement that she spoke to D.S. was untrue.
The prosecutor never asked D.S. any questions or spoke to D.S. during voir dire.
However, although the prosecutor did not question D.S. individually, she did question
him while asking the jury panel questions as a whole. She likely would have been able to
get a sense of D.S.’s demeanor while she was questioning the prospective jurors as a
group, as well as from the court and defense counsels’ questioning of the jurors.
Defendant further argues that D.S.’s response that a defendant might not want to
testify because he would be “misunderstood,” was not an odd response. But even if it
could be construed as reasonable, the prosecutor explained why she thought the response
was an odd answer. She indicated she had a hunch the response related to something in
the back of D.S.’s mind, she was concerned he seemed grumpy, she did not have a
connection with him, and D.S. seemed as if he did not to want to be there. The
prosecutor’s explanation was sufficient to support the trial court’s finding that the
prosecutor’s reasons for removing D.S. were genuine and credible. Further questioning
by the court was not required. A peremptory challenge may be based on a hunch.
(Chism, supra, 58 Cal.4th at p. 1316; People v. Johnson (1989) 47 Cal.3d 1194, 1218.)
An arbitrary exclusion is permissible, “‘so long as the reasons are not based on
impermissible group bias’ [citation]. The basis for a challenge may range from ‘the
virtually certain to the highly speculative’ [citation] and ‘even a “trivial” reason, if
genuine and neutral, will suffice.’ [Citation.]” (Chism, at p. 1316.)
22
Defendant argues the trial court stated it disagreed with the prosecutor’s
explanation for excusing the three jurors yet accepted them anyway, without inquiring
further regarding the prosecutor’s unsupported and implausible reasons. Although the
trial court did not ask probing questions of D.S., the court stated it did observe that D.S.
was “somewhat grumpy,” and the prosecutor explained in sufficient detail why she was
uncomfortable with leaving D.S. on the jury. The trial court was not required to inquire
further. The prosecutor’s reasons for excusing D.S. were plausible. There was thus
substantial evidence supporting the trial court’s determination that the prosecutor’s
reasons were sincere and genuine, rather than pretextual. This court must therefore give
the trial court’s findings deference, since the trial court was in a better position than this
court to observe and evaluate D.S. and the prosecutor. (Long, supra, 189 Cal.App.4th at
p. 845; Lenix, supra, 44 Cal.4th at p. 614.)
The trial court noted it did not objectively see anything wrong with D.S. as a juror,
under the applicable Batson/Wheeler standard, the trial court found the prosecutor’s
removal of D.S. justified. The trial court stated, “I don’t even agree with the standard,
but again, I’m not here to make law from the bench. I think actually Justice Liu on the
California Supreme Court is very critical of the standard. You may see that standard
change at some point in time, but as of right now, it would appear as though Ms. Drake
[the prosecutor] justified the excusing of Mr. D.S.” Giving deference, as we must, to the
trial court’s finding that the prosecutor’s race-neutral reasons for removing D.S. were
genuine and sincere, and there being no direct contradictory evidence showing bias, we
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conclude defendant has not established a Batson/Wheeler violation as to D.S.’s removal
from the jury.
B.K.
Defendants made their Wheeler motion after the prosecutor excused B.K.
Defendant argues on appeal that the record shows the prosecutor’s justifications for
excusing B.K. were pretextual because (1) there was evidence B.K. was not actually
biased against law enforcement, (2) the prosecutor demonstrated disparate treatment by
not dismissing an alternate juror with a similar psychiatric employment background to
that of B.K., and (3) jurors’ biases against law enforcement and defendant’s drug history
were irrelevant to defendant’s case.
When the trial court asked the prosecutor to state her race-neutral reasons for
excusing B.K., the prosecutor stated that her primary concern was that B.K. worked as
the director of nurses at a psychiatric hospital. The prosecutor explained: “She’s stated
she was an RN, which is fine. We have other RNs or pharmacists on the jury. My
concern is that she works at a psychiatric hospital. I think psychiatric hospitals in my
limited experience – my brother is actually an EMT and works at psychiatric hospitals.
My concern with that is law enforcement does come in there on a somewhat regular basis
and sometimes they’re not – the patients are not always treated with the utmost light
hands or a lot of times the staff doesn’t understand kind of what is going on and they take
offense to how people are treated.” Dorr acknowledged that the prosecutor seemed to be
concerned B.K. might have “bias against the police because they’re using too much force
wherever she works.” The prosecutor also stated she was concerned that B.K. would be
24
sympathetic to defendant because there was the possibility defendant’s mother would
testify that defendant had a history of abusing drugs and B.K. might dismiss defendant’s
actions and culpability because of his drug habit, which was why he committed the
charged crimes.
Although the trial court found that removal of B.K. was “a bit of a stretch,” the
court acknowledged that the prosecutor’s race-neutral justification, which was based on a
subjective hunch that B.K. would be sympathetic to defendant’s drug use, if put in issue,
was proper. The court further noted that the prosecutor’s hunch was speculative that
B.K. had a negative view of law enforcement because of how law enforcement treated
psychiatric patients when law enforcement brought patients in. The prosecutor noted that
she had dismissed another prospective juror, E.P., who was a Hispanic male, for the same
reason as B.K. .E P. worked at Patton as a registered nurse. The prosecutor said she had
a hunch nurses at psychiatric hospitals did not like law enforcement, and her hunch was
based on her experience speaking with jurors in previous hung jury cases.
A juror’s occupation can be a permissible, nondiscriminatory reason for exercising
a peremptory challenge. (Chism, supra, 58 Cal.4th at p. 1316; People v. Trevino (1997)
55 Cal.App.4th 396, 411; People v. Landry (1996) 49 Cal.App.4th 785, 790-791; People
v. Perez (1996) 48 Cal.App.4th 1310, 1315; People v. Barber (1988) 200 Cal.App.3d
378, 394.) As in the instant case, “a prosecutor ‘can challenge a potential juror whose
occupation, in the prosecutor’s subjective estimation, would not render him or her the
best type of juror to sit on the case for which the jury is being selected.’ [Citation.]”
(Chism, supra, 58 Cal.4th at p. 1317.) In addition, negative experiences with law
25
enforcement constitute a valid race-neutral reason for the prosecution exercising a
peremptory challenge. (People v. Turner (1994) 8 Cal.4th 137, 171, overruled on
different grounds in People v. Griffin (2004) 33 Cal.4th 536, 555, fn. 5.) A peremptory
challenge may also be based on a hunch. (Chism, at p. 1316; People v. Johnson, supra,
47 Cal.3d at p. 1218.) Even an arbitrary exclusion is permissible, “‘so long as the reasons
are not based on impermissible group bias’ [citation]. The basis for a challenge may
range from ‘the virtually certain to the highly speculative’ [citation] and ‘even a “trivial”
reason, if genuine and neutral, will suffice.’ [Citation.]” (Chism, at p. 1316.) As long as
a peremptory challenge is exercised in a nondiscriminatory manner, it may be based on
speculation. (Ibid.)
Here, the prosecutor stated she believed B.K.’s employment as director of the
nurses at a psychiatric hospital would render B.K. not the best type of juror to sit on the
case. The prosecutor explained why she believed this. The trial court found that the
prosecutor’s race-neutral explanation was sincere and genuine, and not racially
motivated. (Chism, supra, 58 Cal.4th at p. 1316.) The record supports this finding.
Defendant argues it is apparent the prosecutor’s reasons for dismissing B.K. were
pretextual because the prosecutor did not dismiss an alternate juror, referred to as TAJ2,
who was employed as a psychologist for the public school system, and who had
previously worked in neuropsychology hospital settings. TAJ2 differed from B.K.,
however, in that he was a psychologist, not a nurse, and he did not state he had direct
contact with law enforcement, personally or professionally. In addition, he currently was
working for the school district, rather than at a hospital, and was selected as an alternate
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juror.
Defendant argues that the prosecutor’s concern regarding juror bias against law
enforcement was unfounded because such bias was irrelevant to defendant’s case. Even
though officer testimony may not have been crucial to proving defendant’s criminal
charges, three law enforcement witnesses were listed as trial witnesses and voir dire
questioning by the court and counsel included questions concerning law enforcement. At
trial, a law enforcement officer testified regarding locating Reyes’s car after the incident
and as to statements made by defendant to police the day after the incident. Possible bias
against law enforcement was a relevant, valid race-neutral justification. We conclude
there was substantial evidence in the record supporting the trial court’s finding that the
prosecutor’s reasons for excusing B.K. were genuine and sincere.
C. Probing Questioning by the Trial Court
Defendant asserts the trial court failed in its duty to inquire and evaluate the
legitimacy of the prosecutor’s race-neutral explanations for excusing the three
prospective jurors, by determining whether valid reasons existed that “‘actually prompted
the prosecutor’s exercise of the particular peremptory challenge.’” (People v. Salcido,
supra, 44 Cal.4th at pp. 143-144; People v. Fuentes (1991) 54 Cal.3d 707, 720.) We
disagree. The trial court asked clarifying questions when appropriate. The trial court was
not required to “cross-examine” the prosecutor to determine the veracity of her
explanations. By personally observing the prosecutor’s demeanor in providing her
explanations, the trial court presumably weighed the prosecutor’s veracity and
determined whether her explanations were legitimate, race-neutral reasons for excusing
27
the three jurors. Further questioning of a reason is only required where the explanation is
implausible or suggests bias. (Silva, supra, 25 Cal.4th at p. 386; Hall, supra, 35 Cal.3d at
pp. 168-169.)
Here, the prosecutor’s reasons were plausible and did not suggest bias. Applying
the appropriate deferential standard of review, we conclude that the prosecutor’s race-
neutral reasons were sufficiently plausible, there is substantial evidence supporting those
reasons, and there is insufficient evidence in the record to support a determination that
the three jurors were removed based on race. The record shows that the trial court
properly made a sincere and reasoned evaluation of the prosecutor’s reasons for
exercising her peremptory challenges, sufficiently questioned the prosecutor regarding
her reasons for exercising her peremptory challenges, and appropriately denied
defendants’ Wheeler motion.
IV
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON J. We concur:
HOLLENHORST Acting P. J.
KING J.
28
AI Brief
AI-generated · verify before citing
Holding. The trial court did not err in denying the defendant's Wheeler motion because it made a sincere and reasoned effort to evaluate the prosecutor's race-neutral justifications for excusing three African American jurors and found them to be sincere.
Issues
Did the trial court err in denying the defendant's Wheeler motion regarding the prosecutor's peremptory challenges of three African American jurors?
Did the prosecutor's race-neutral justifications for the peremptory challenges constitute purposeful discrimination?
Did the trial court conduct a sufficiently probing inquiry into the prosecutor's explanations for the challenges?
Disposition. Affirmed.
Quotations verified verbatim against the opinion
“we conclude the trial court made a sincere and reasoned effort to evaluate the prosecutor’s race-neutral justifications for excusing the three prospective jurors, and therefore did not err in denying defendant’s Wheeler motion.”
“The proper focus of a Batson/Wheeler inquiry . . . is on the subjective genuineness of the race-neutral reasons given for the peremptory challenge, not on the objective reasonableness of those reasons.”