People v. Jimenez

318 Cal.Rptr.3d 35

The PEOPLE, Plaintiff and Respondent,

v.Esteban JIMENEZ, Defendant and Appellant.

D081267

Court of Appeal, Fourth District, Division 1.

Filed January 3, 2024

As Modified February 6, 2024

Certified for Partial Publication^*

APPEAL from a judgment of the Superior Court of San Diego County, Maryann D’Addezio Kotler, Judge. Affirmed in part, reversed in part, and remanded. (Super. Ct. No. SCS319685)

John L. Staley, San Diego, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Robin Urbanski and Laura Baggett, Deputy Attorneys General, for Plaintiff and Respondent.

KELETY, J.

A jury convicted Appellant Esteban Jimenez of evading an officer while driving recklessly (Veh. Code, § 2800.2, subd. (a)) and leaving the scene of an accident (Veh. Code, § 20002, subd. (a)) and found true a prior strike allegation. Jimenez appeals, arguing: (1) the prosecutor improperly exercised a peremptory challenge as to a juror in violation of Code of Civil Procedure¹ section 231.7 and the state and federal constitutions; and (2) there was insufficient evidence to convict Jimenez of a violation of Vehicle Code section 20002, subdivision (a).

We conclude: (1) the prosecutor did not violate section 231.7 or Jimenez’s constitutional rights by exercising the peremptory challenge, and (2) the evidence was insufficient to establish that Jimenez violated Vehicle Code section 20002, subdivision (a). Therefore, we affirm Jimenez’s conviction under Vehicle Code, section 2800.2, subdivision (a) and the prior strike allegation, and we reverse his conviction under Vehicle Code section 20002, subdivision (a).

I. PROCEDURAL BACKGROUND

On April 6, 2022, the People filed an information charging Jimenez with evading an officer while driving recklessly (Veh. Code, § 2800.2, subd. (a), count 1); leaving the scene of an accident, commonly referred to as "hit and run"² (Veh. Code, § 20002, subd. (a), count 2); resisting an officer (Pen. Code, § 148, subd. (a)(1), count 3); and two counts of possession of a controlled substance (Health & Saf. Code, §§ 11377, subd. (a), 11350, subd. (a), counts 4 and 5). The People additionally alleged that Jimenez had a prior strike conviction (Pen. Code, §§ 667, subds. (b)–(i), 668, & 1170.12).

Jimenez pleaded not guilty to the charges and proceeded to trial. Prior to trial, the court dismissed count 3 at the People’s request.

Following the close of evidence, the court dismissed counts 4 and 5 on Jimenez’s motion. The jury found Jimenez guilty of counts 1 and 2 and found true the prior strike allegation. The court later sentenced Jimenez to the middle term on count 1, doubled for the strike for a total term of four years. The court stayed the sentence for count 2 under Penal Code section 654.

On appeal, Jimenez argues that: (1) the court erred by finding no violation of section 231.7 based on the prosecutor’s exercise of a peremptory challenge as to Juror Number 8, which also violated his constitutional rights, and (2) sufficient evidence did not exist to prove Jimenez guilty of leaving the scene of an accident in violation of Vehicle Code section 20002, subdivision (a). We discuss each of these contentions in turn.

II. PROSECUTOR’S EXERCISE OF PEREMPTORY CHALLENGE AS TO JUROR NUMBER 8

We begin with a discussion of the provisions of section 231.7. We will then discuss the facts as they unfolded during voir dire, and consider those facts and the trial court findings under section 231.7 in light of those facts. Finally, we turn to Jimenez’s claims of violations of his constitutional rights.

A. Section 231.7

The Legislature enacted section 231.7, effective in criminal trials beginning January 1, 2022, to establish "a new process for identifying unlawful bias in the use of peremptory challenges during jury selection" because studies showed that the existing Batson/Wheeler analysis, discussed below, was inadequate to prevent racial discrimination. (Assem. Com. on Judiciary, Rep. on Assem. Bill No. 3070 (2019–2020 Reg. Sess.) as amended May 4, 2020, p. 1.) Section 231.7, subdivision (a) prohibits the "use [of] a peremptory challenge to remove a prospective juror on the basis of the prospective juror’s race, ethnicity, gender, gender identity, sexual orientation, national origin, or religious affiliation, or the perceived membership of the prospective juror in any of those groups" ("cognizable groups"). (Id. at subds. (a), (i), & (k).) Discrimination in violation of this section need not be purposeful, but may involve "unconscious bias," which "includes implicit and institutional biases." (Id. at subds. (d)(1) & (d)(2)(C).)

Once the opposing party timely objects to the peremptory challenge, the party seeking to exercise the peremptory challenge must state the reasons justifying the challenge. (§ 231.7, subd. (c).) The trial court then evaluates only the given reasons, without speculating on or assuming possible justification, "in light of the totality of the circumstances" and must sustain the objection if "there is a substantial likelihood that an objectively reasonable person would view [actual or perceived mem- bership in a cognizable group] as a factor in the use of the peremptory challenge." (Id. at subd. (d)(1).) The statute defines "substantial likelihood" as "more than a mere possibility but less than a standard of more likely than not." (Id. at subd. (d)(2)(B).) Section 281.7, subdivision (d)(3) provides a non-exhaustive list of circumstances the court may consider in the analysis. The court must "explain the reasons for its ruling on the record." (Id. at subd. (d)(1).)

The statute dictates that certain reasons given by the challenging party are presumed invalid. (§ 231.7, subd. (e).) Presumptively invalid reasons include that the prospective juror at issue "[e]xpress[ed] a distrust of or ha[d] a negative experience with law enforcement or the criminal legal system" or the juror "[e]xpress[ed] a belief that law enforcement officers engage in racial profiling or that criminal laws have been enforced in a discriminatory manner." (Id. at subd. (e)(1)–(2).) To overcome the presumption, "the party exercising the peremptory challenge [must] show by clear and convincing evidence that an objectively reasonable person would view the rationale as unrelated to a prospective juror’s [actual or perceived membership in a cognizable group], and that the reasons articulated bear on the prospective juror’s ability to be fair and impartial in the case." (Id. at subd. (e).) Clear and convincing evidence to overcome the presumption exists when the court "determine[s] that it is highly probable that the reasons given for the exercise of a peremptory challenge are unrelated to conscious or unconscious bias and are instead specific to the juror and bear on that juror’s ability to be fair and impartial in the case." (Id. at subd. (f).)

[1] Once the court has determined that the party seeking to exercise the peremptory challenge has overcome the presumption of invalidity as to a stated reason, the court may consider that stated reason in the section 231.7, subdivision (d)(1) analysis as to whether it is substantially likely that a reasonable person would consider that race was a factor in the challenge. (People v. Ortiz (2023) 96 Cal.App.5th 768, 805, 314 Cal.Rptr.3d 732 (Ortiz).)

B. Voir Dire Facts

Prospective Juror Number 8 was a Latina who worked as a school secretary for a school district and had never served on a jury. During voir dire, the defense attorney asked Juror Number 8 if she would follow the law even if she disagreed with it, and she responded: "I will always follow the law. I don’t break the law. However, I see sometimes the law is not—it’s depending on the color of your skin." She further explained, "I believe the law was supposed to be blind, but I don’t think it’s blind. I think there’s—color of a person or their status, economic status, is a consideration." At that time, she stated she could still be fair and follow the law.

The prosecutor later asked the prospective jurors if anyone would have a problem evaluating the testimony of law enforcement officers. Juror Number 4, a white woman who worked as a librarian for a public library, volunteered, stating she believes that it is "common" for officers to have "institutional" bias based on interactions between non-white patrons and law enforcement she had witnessed. Because of these experiences, she could not say "say 100 percent that it wouldn’t influence [her] decision."

The prosecutor then turned to Juror Number 8 because she had previously mentioned "a person’s race and how that affects law enforcement." He asked her if she would "have a difficult time being fair and considering only the evidence that [is] presented" even if "there’s no evidence that’s presented" regarding how race af- fects law enforcement. Juror Number 8 replied, "I think it would be difficult. I’m not saying I couldn’t do it. I also think that I—I also think implicit bias is definitely a thing that I could do without knowing I did it." When the prosecutor again asked her whether "it would be difficult" to give the testimony of the officers "a fair shake," she confirmed, "I like to think it wouldn’t be [difficult to be fair]. But I feel like it could be one of those things where it’s, like, always in the back of my mind as much as I try to set it aside."

After the close of voir dire, the prosecution requested Juror Number 4 be excused for cause, and the defense objected; the court granted the prosecution’s request. The prosecution also requested the court dismiss six other jurors because they stated they could not be fair.

After dismissals for cause, the parties began peremptory challenges. The prosecutor first exercised a peremptory challenge as to Juror Number 16, a white male teacher who had not previously served on a jury, without objection from the defense. Next, the...