People v. Martinez

98 Cal.Rptr.2d 127

82 Cal.App.4th 339

The PEOPLE, Plaintiff and Respondent, v. Jorge L. MARTINEZ et al., Defendants and Appellants.

No. B137144.

Court of Appeal, Second District, Division 6.

July 18, 2000.

Review Granted October 25, 2000.

Kevin C. McLean, San Diego, under appointment by the Court of Appeal, for Defendant and Appellant, Jorge L. Martinez.

Joseph B. de Illy, Sacramento, under appointment by the Court of Appeal, for Defendant and Appellant, Ramon Quintero.

Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney General, Carol Wendelin Pollack, Senior Assistant Attorney General, John R. Gorey, Supervising Deputy Attorney General, Michelle M. Paffile, Deputy Attorney General, for Plaintiff and Respondent.

COFFEE, J.

Appellants Jorge L. Martinez and Ramon Quintero robbed a landscaper while he was working in the front yard of a client's home. A jury convicted them of second degree robbery with firearm enhancement allegations. (Pen.Code, §§ 211, 212.5, subd. (c); 12022, subd. (b); 12022.53, subd. (b).)

Martinez claims on appeal that the trial court erred by applying an erroneous legal standard when ruling on his motion to dismiss the jury venire under People v. Wheeler (1978) 22 Cal.3d 258, 148 Cal. Rptr. 890, 583 P.2d 748 (Wheeler). Quintero argues that his trial counsel was ineffective for failing to join in the Wheeler motion brought by Martinez. Martinez also contends the evidence was insufficient to support the jury's finding that he personally used a firearm, and Quintero claims he was denied his right to conflict-free counsel. We affirm.

FACTS

On April 9, 1999, Bellasario Sosa was working as a landscaper at a Granada Hills home. At about 1:00 p.m., three Hispanic men in a blue Lincoln Continental stopped at the house. The man in the front passenger seat got out and pointed a handgun at Sosa, telling him to put his hands up. A second man got out of the back seat and took Sosa's wallet. Both men returned to the car and they drove away.

Sosa's boss came to the front of the house and Sosa told him what had happened. The police were called and within the hour, officers had stopped a blue Continental matching the description of the vehicle used in the robbery. Quintero was driving, Martinez was in the front passenger seat, and Arturo Cortez was in the back seat.¹ Police found a loaded .22-caliber handgun under the front passenger seat and discovered Sosa's wallet in the glove compartment.

Police transported Sosa to the site of the traffic stop for a curbside identification. He identified Martinez as the man who had pointed the gun at him, but had not seen the driver's face and could not identify Quintero. He had been told ahead of time that the men might or might not be the robbers.

Quintero testified at trial and denied participating in the robbery. He claimed he was a day laborer who had been picked up in front of Home Depot that morning to work on a job in Granada Hills. Martinez, Arturo Cortez and a man named "Matches" were also hired for the same job, and Matches drove them to the site in his blue Continental. Martinez, Cortez and Matches left the job site at about 12:40 p.m. to go to lunch, but Quintero continued to work so he could leave early.

When the men returned at about 1:40 p.m., Matches allowed Quintero to borrow his car to drive home. Quintero agreed to give Martinez and Cortez a ride. When police stopped the car, Martinez and Cortez became very nervous. Cortez handed a gun to Martinez, and Martinez took out a wallet and shoved it in the glove box.

Quintero had been interviewed by police a few days after the robbery and told a different story. He said that he had been hired with Martinez and Cortez to do some yard work on the day of his arrest. Martinez and Cortez left the job site on foot and later returned. They were stopped by police while driving home. Quintero never mentioned anyone named "Matches."

DISCUSSION

I. Wheeler Motion

During voir dire, the prosecutor used four of her first eleven peremptory challenges to remove Hispanic jurors from the panel. Counsel for Martinez brought a motion to dismiss the venire under People v. Wheeler, supra, 22 Cal.3d at pp. 276-277, 148 Cal.Rptr. 890, 583 P.2d 748, arguing that the Hispanic jurors had been excused solely because of their ethnicity. We reject Martinez's claim that the court erred when it denied the motion.

A criminal defendant has a right to trial by a jury drawn from a representative cross-section of the community. A prosecutor may not exercise peremptory challenges to exclude jurors for presumed bias based solely on their membership in a particular racial or ethnic group. (Cal. Const., art. I, § 16; People v. Wheeler, supra, 22 Cal.3d at pp. 276-277, 148 Cal. Rptr. 890, 583 P.2d 748; see also U.S. Const., 6th & 14th Amends.; Batson v. Kentucky (1986) 476 U.S. 79, 89, 106 S.Ct. 1712, 1719, 90 L.Ed.2d 69, 82-83 (Batson).) Hispanics are a cognizable group for Wheeler purposes. (People v. Broum (1999) 75 Cal.App.4th 916, 924, 89 Cal. Rptr.2d 589.)

The trial court here found no prima facie case of group discrimination, a determination that we must uphold if it is supported by substantial evidence. (People v. Jones (1998) 17 Cal.4th 279, 293-294, 70 Cal.Rptr.2d 793, 949 P.2d 890; People v. Jackson (1992) 10 Cal.App.4th 13, 23, 12 Cal.Rptr.2d 541.) Because the resolution of a Wheeler motion is highly dependent upon the judge's personal observations of the attorneys and the prospective jurors, we approach the court's ruling with "`considerable deference.'" (People v. Crittenden (1994) 9 Cal.4th 83, 117, 36 Cal. Rptr.2d 474, 885 P.2d 887.) "If the record `suggests grounds upon which the prosecutor might reasonably have challenged' the jurors in question, we affirm." (People v. Hoivard (1992) 1 Cal.4th 1132, 1155, 5 Cal.Rptr.2d 268, 824 P.2d 1315.)

The record supports the trial court's finding that the prosecution had nondiscriminatory reasons for excusing the four Hispanic jurors. Juror L.A. had several family members who had been arrested, some of whom were prison. Juror P.V. had two convictions for driving under the influence and a brother with a hit-and-run conviction. Juror J.A.'s father had been arrested for spousal abuse. These contacts with the criminal justice system provided valid reasons for excluding these potential jurors. (See People v. Douglas (1995) 36 Cal.App.4th 1681, 1690, 43 Cal. Rptr.2d 129; People v. Allen (1989) 212 Cal.App.3d 306, 312, 260 Cal.Rptr. 463.) Additionally, Juror J.A. appeared unwilling to sit on the jury. He initially told the court that service would be a financial hardship because he would only be paid for five days of missed work, but later admitted that his employer had agreed to pay him for more time off if necessary. Reluctance to serve is another nondiscriminatory reason supporting a peremptory challenge. (People v. Walker (1998) 64 Cal. App.4th 1062, 1070, 75 Cal.Rptr.2d 871.)

The fourth Hispanic juror excused by the prosecution was Y.S., a single mother of two. She gave very short answers to the questions asked of her and indicated she had never served on a jury, had never been arrested, had no family members who had been arrested, and did not know any police officers, lawyers or other court personnel. The prosecutor could have legitimately excused her because she lacked sufficient life experience. (See People v. Perez (1994) 29 Cal.App.4th 1313, 1328, 35 Cal.Rptr.2d 103.) Additionally, Juror Y.S. worked for Home Depot. Quintero claimed to have been hired for day work at a Home Depot on the morning of the robbery, and the prosecution might well have believed there was too close of a connection between the juror's employment and the facts of the case.

Martinez argues that reversal is required in spite of these nondiscriminatory reasons, because the trial court applied an erroneous legal standard when ruling on his Wheeler motion. He relies on the Ninth Circuit's recent decision in Wade v. Terhune (2000) 202 F.3d 1190, 1197 (Wade), which concluded that Wheeler sets an impermissibly high standard for establishing a prima facie case of discrimination under the federal equal protection clause and Batson v. Kentucky, supra, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69.

Both Wheeler and Batson established similar tests for trial courts to apply when determining the purpose behind a peremptory challenge. The first step of each test requires a defendant who suspects an improper challenge to lodge a timely objection and make a prima facie case of discrimination. (See People v. Wheeler, supra, 22 Cal.3d at pp. 280-281, 148 Cal.Rptr. 890, 583 P.2d 748; Batson v. Kentucky, supra, 476 U.S. at pp. 96-98, 106 S.Ct. 1712.) Once a prima facie case is made, the burden shifts to the prosecution to state adequate, nondiscriminatory reasons for the peremptory challenge. (Ibid.)

The California Supreme Court has repeatedly stated that a defendant must demonstrate a "`"strong likelihood"'" of discrimination to establish a prima facie case under Wheeler. (E.g., People v. Williams (1997) 16 Cal.4th 635, 663-664, 66 Cal.Rptr.2d 573, 941 P.2d 752; People v. Arias (1996) 13 Cal.4th 92, 134-135, 51 Cal.Rptr.2d 770, 913 P.2d 980; People v. Davenport (1995) 11 Cal.4th 1171, 1199-1200, 47 Cal.Rptr.2d 800, 906 P.2d 1068; People v. Turner (1994) 8 Cal.4th 137,164-165, 32 Cal.Rptr.2d 762, 878 P.2d 521.) Batsm, on the other hand, requires only that the defendant "raise an inference" of a discriminatory purpose. (Batson v. Kentucky, supra, 476 U.S. at p. 96, 106 S.Ct. 1712; Wade v. Terhune, supra, 202 F.3d at p. 1195.)

The "inference" standard of Batson is more favorable to the defendant because it shifts the burden to the prosecution upon a less demanding initial showing of discrimination. (See People v. Bernard (1994) 27 Cal.App.4th 458, 464-466, 32 Cal.Rptr.2d 486 ["strong likelihood" more demanding standard than "reasonable inference"].) In Wade, the Ninth Circuit concluded that ...