People v. Arellano

245 Cal.App.4th 1139

200 Cal.Rptr.3d 491

The PEOPLE, Plaintiff and Respondent,

v.Adam ARELLANO, Defendant and Appellant.

F068958

Court of Appeal, Fifth District, California.

Filed March 24, 2016

Certified for Partial Publication.^*

Jennifer A. Mannix, Cambria, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Stephen G. Herndon, Deputy Attorneys General, for Plaintiff and Respondent.

POOCHIGIAN, ACTING P.J.

INTRODUCTION

Appellant/defendant Adam Arellano was charged with count I, first degree premeditated murder of Reynoldo Daniel "Woody" Abrego (Abrego) ( Pen.Code, §§ 187, subd. (a), 189 ),¹ count II, being a felon in possession of a firearm, based on the murder weapon (§ 29800, subd. (a)(1)), and other felony offenses. After a lengthy trial, the jury was unable to reach a verdict on counts I and II, the murder and possession charges, and the court declared a mistrial as to those counts. The jury convicted defendant of the other charged offenses: count III, possession of an assault weapon, based on a rifle found in the trunk of the car defendant drove to the scene and left there after the homicide (§ 30605) and count IV, active participation in a criminal street gang (§ 186.22, subd. (a)). He was sentenced to 12 years.

During jury selection, the People used peremptory challenges to excuse all three African–American women from the panel. Defendant objected pursuant to Batson v. Kentucky (1986) 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 ( Batson ) and People v. Wheeler (1978) 22 Cal.3d 258, 148 Cal.Rptr. 890, 583 P.2d 748 ( Wheeler ), and argued the prosecutor was systematically excluding African–American women from the jury. The court found defendant made prima facie cases of racial discrimination as to all three prospective jurors and asked the prosecutor to state the reasons for the challenges. The prosecutor did so. Thereafter, the court found the prosecutor had stated race-neutral reasons and denied defendant's Batson/ Wheeler objections.

On appeal, defendant contends the court should have granted his Batson / Wheeler motion to discharge the jury because the prosecutor was systematically excluding African–American women from the jury, and his stated reasons were not supported by the record and were not race neutral. Defendant also contends there is insufficient evidence to support his conviction for possession of the assault rifle found in the trunk of the car he drove to the homicide scene.

As we will fully discuss in the published portion of this opinion, "once the opponent of a peremptory challenge has made out a prima facie case of racial discrimination (step one), the burden of production shifts to the proponent of the strike to come forward with a race neutral explanation (step two). If a race-neutral explanation is tendered, the trial court must then decide (step three) whether the opponent of the strike has proved purposeful racial discrimination." ( Purkett v. Elem (1995) 514 U.S. 765, 767, 115 S.Ct. 1769, 131 L.Ed.2d 834 ; People v. Silva (2001) 25 Cal.4th 345, 384, 106 Cal.Rptr.2d 93, 21 P.3d 769 ( Silva ).) The exclusion by peremptory challenge of a single juror on the basis of race, gender, or ethnicity is an error of constitutional magnitude requiring reversal. ( Silva, supra, 25 Cal.4th at p. 386, 106 Cal.Rptr.2d 93, 21 P.3d 769 ; People v. Bonilla (2007) 41 Cal.4th 313, 340–341, 60 Cal.Rptr.3d 209, 160 P.3d 84 ( Bonilla ).) On review, Batson / Wheeler error is reversible per se, and the remedy is a new trial without any inquiry into harmless error. ( Wheeler, supra, 22 Cal.3d at p. 283, 148 Cal.Rptr. 890, 583 P.2d 748 ; People v. Cisneros (2015) 234 Cal.App.4th 111, 120, 184 Cal.Rptr.3d 1 ; see e.g., Rivera v. Illinois (2009) 556 U.S. 148, 161, 129 S.Ct. 1446, 173 L.Ed.2d 320 ; Winston v. Boatwright (7th Cir.2011) 649 F.3d 618, 628.)

We find the record supports the court's ruling as to the prosecutor's reasons for excusing two of the prospective African–American jurors. However, the prosecutor's stated reason for excusing the third prospective juror is not supported by the record and contrary to the evidence presented at voir dire. As a result, we are compelled to reverse defendant's convictions for count III, possession of an assault weapon, and count IV, active participation in a criminal street gang, because of Batson / Wheeler error.²

PART I^**

PART II

JURY SELECTION

In this case, the court conducted lengthy voir dire proceedings on November 18, 19, 20, 21, and 22, 2013. As we will explain, defendant made two separate Batson / Wheeler motions after the prosecution used peremptory challenges to remove three prospective jurors who were African–American women: V.B., V.K., and W.W.

In response to defendant's objections, the court found prima facie cases were established and asked the prosecutor to explain the reasons for excusing each person. After hearing the prosecutor's explanations, the court denied defendant's Batson / Wheeler motions.

We turn to the chronological history of voir dire as relevant to these three prospective jurors. As we will explain, the court properly denied defendant's Batson / Wheele r motions as to prospective jurors, V.B. and V.K., but it should have granted defendant's motion in response to the prosecutor's use of a peremptory challenge to excuse prospective juror, W.W.

Hardship stage—Prospective Juror V.B.

On the first day of jury selection, the court began with 75 prospective jurors and asked for hardship excuses for the approximately two- to three-week trial. (RT 2–5).

W.W. was in the first group of prospective jurors, and she did not request a hardship excuse.

After the court granted numerous hardship excuses, it called in another large group of prospective jurors. The second group included V.B. and V.K., both of whom requested hardship excuses.

Prospective Juror V.B. requested a hardship medical excuse because she was diabetic, she had to regularly eat, and she had to frequently use the restroom. She also said her "kids were accused of being in gangs" in Kern County. Her son had been convicted of felony robbery, and another son was involved with a cousin who was a gang member. In response to the court's question, Prospective Juror V.B. stated that her family situation and health concerns would prevent her from giving her undivided attention to the case.

The prosecutor stipulated to Prospective Juror V.B.'s hardship excuse.

Defense counsel declined to stipulate and asked Prospective Juror V.B. whether she could sit through the trial and use the restroom during breaks. She said yes, and explained she drove a bus, and she stopped and used the restroom when she needed it.

Defense counsel asked why her son's situation would affect her ability to give defendant a fair trial. Prospective Juror V.B. replied:

"I didn't say that would affect me. I said similar, because they asked did you have a similar situation, and I said it's not quite, but it's kind of similar as far as the gang-related part."

Defense counsel advised Prospective Juror V.B. that they were trying to find impartial jurors, and asked whether son's situation would affect how she would listen to the facts of the case. She replied:

"I can't say it won't, you know what I mean, because I don't know what the situation is, so I can't really answer that. You know what I mean? So I really can't answer that, if it would affect me or not, because I haven't heard anything and I don't know if his situation might come into play with his, but in a similar situation. That question I couldn't answer honestly."

Defense counsel asked Prospective Juror V.B. if she would be biased upon learning the case involved something similar to her son's situation. She replied: "I couldn't answer that," and "I don't know what I would do." Defense counsel asked if she presumed defendant guilty. She replied that he could be not guilty because "[d]on't nobody know anything, so how can you say he's guilty." She presumed defendant was innocent, and understood the People had the burden to prove the case beyond a reasonable doubt.

After asking these questions, defense counsel declined to stipulate to Prospective Juror V.B.'s hardship excuse.

The prosecutor asked Prospective Juror V.B. if either of her sons were sent to prison. She said both went to prison. The prosecutor asked if she felt the system treated them fairly. She said no because "before my son went up, one person went up. They were both similar. That one got off with probation. The other one got sent to jail. And I'm like what the heck?" She said it was the same case but "different D.A.s. One gets probation; one goes to jail." She also said it was "racial" because her son was Black and the other suspect was White. "But they pretty much did the same thing. That one got slapped on the wrist and my son went to jail...." She believed it was unfair.

The prosecutor asked Prospective Juror V.B. if she had "a chip on her shoulder towards the District Attorney's Office?" She said no, that it was "all dead and done with. That's all in the past," and it happened 10 or 15 years ago. The prosecutor asked her if she was afraid of gangs, and she said no. He asked if her sons talked to her about gangs. She replied, "No. They tried to tell me a little about it, but I'm like you can't wear this, you can't do this, you know. It don't bother me. I wear what I wanna wear and say what I wanna say." She did not have any problem saying defendant was guilty of murder if she thought the evidence showed that.

Prospective Juror V.B. remained on the panel through the hardship stage.

Hardship stage—Prospective Juror V.K.

On the second day of jury selection, Prospective Juror V.K. requested a hardship financial excuse because she was a special needs social worker for Kern Regional Center, and her employer only paid for 15 days of leave. The court asked the attorneys whether the case could be resolved...