People v. Trevino

Page 61

64 Cal.Rptr.2d 61

55 Cal.App.4th 396, 97 Cal. Daily Op. Serv. 4084,

97 Daily Journal D.A.R. 6833

The PEOPLE, Plaintiff and Respondent, v. Victor Gabriel TREVINO, Defendant and Appellant.

No. F024895.

Court of Appeal, Fifth District, California.

May 29, 1997.

Certified for Partial Publication. ^*

Review Denied Aug. 20, 1997.

[55 Cal.App.4th 399] Candace Hale, under appointment by the Court of Appeal, Sausalito, for Defendant and Appellant.

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Robert R. Anderson, Assistant Attorney General, Alison Aleman-Smith and Catherine G. Tennant, Deputy Attorneys General, for Plaintiff and Respondent.

WISEMAN, Associate Justice.

This appeal concerns the review of a defense motion made pursuant to the Wheeler/Batson ¹ decisions. Noteworthy is the fact the trial court did not explain its reasons for finding the defense failed to establish a prima facie case of group bias, and the People's reasons for exercising challenges against the subject jurors are not apparent from the record.

Wheeler squarely places the burden of proof on the moving party to affirmatively establish from all the circumstances of the case, that there is a strong likelihood a juror was challenged because of his or her group association rather than because of any specific bias. We balance this well established standard against the fact it is presumed the party exercising a peremptory challenge does so on a constitutional basis. Consistent with Wheeler, we look to all the circumstances of the case and conclude the defense has failed to make a prima facie showing of purposeful discrimination. After an exhaustive review of the record, there is a common thread which runs through all the People's challenges--not just those of jurors belonging to a cognizable class. Six of the seven jurors peremptorily challenged by the People were either employed in the health professions or had spouses employed in this field. Since this common characteristic may have been the basis for the People's challenges, we conclude this is sufficient to sustain the trial court's ruling on review, and affirm.

PROCEDURAL HISTORY

Victor Gabriel Trevino (defendant) was charged in a first amended information with one count of second degree robbery in violation of Penal Code sections 211/212.5, subdivision (c). ² It was also alleged defendant was armed with a firearm during the commission of the crime in violation of section 12022, subdivision (a)(1). Further, the information alleged defendant had suffered one prior conviction for which he served a prison term within the meaning of section 667.5, subdivision (b) and another prior conviction which was counted both as a serious felony and as a strike within the meaning of section 667, subdivisions (a), and (b) through (i), section 1192.7, subdivision (c), and section 1170.12, subdivisions (a) through (e).

Defendant pled not guilty to the charge, denied the special allegations and moved to bifurcate the trial on the priors. The court granted the motion and defendant's jury trial commenced the same day. During jury selection, defendant made a Wheeler motion. It was denied by the court. On that same day, the jury found defendant guilty as charged. The jury also found defendant was armed with a firearm during the commission of the crime. Defendant waived a jury trial on the prior convictions and after a trial on the merits, the court found defendant suffered the prior convictions as alleged.

The court sentenced defendant to state prison for an aggregate term of seventeen years, computed as follows: ten years (twice the aggravated term) for the charge pursuant to section 667, subdivisions (b) through (i); one year pursuant to section 12022, subdivision (a)(1); one year pursuant to section 667.5, subdivision (b); and five years pursuant to section 667, subdivision (a).

Defendant filed a timely appeal raising four contentions: (1) the trial court erred by denying his Wheeler motion; (2) his case must be remanded for resentencing because the court did not believe it had the discretion to strike his prior conviction; (3) the court erred by sentencing him twice for the same prior conviction; and (4) he was denied effective assistance of counsel.

FACTUAL HISTORY

In the early morning hours of June 2, 1995, Douglas Moore was walking on Ventura Street in Fresno. As he walked by an alley he noticed three men standing there, but could not see their faces because of the darkness. He walked a little further when he was hit in the back of the neck and fell face first on the sidewalk. He tried to get up but was held down by three men, one of whom said he had a gun at Moore's head. Moore did not see the gun, but felt it in the back of his neck. The men robbed Moore of $75 and then ran off--two of them going in one direction, and the third in another direction. Moore went to the nearest telephone and called 911 to report the robbery. Although he never saw the faces of the men who robbed him, Moore described the clothing they were wearing and said one of them had a ponytail.

Fresno police officers responded to the call and within minutes had identified and detained defendant because he seemed to match the description of one of the robbers given by Moore. Moore was taken to the location where defendant was detained and asked if he recognized defendant. Moore stated defendant "sure looked like one of them." Defendant was taken into custody and booked. As he was being placed in a holding cell, defendant stated: "You didn't catch the other guys, my robbery partners got away you f___ heads. I'm glad they got away."

At trial, Moore testified that approximately two weeks after the robbery he was riding in a car in the Chinatown district of Fresno when he saw a man who had a ponytail and was dressed similarly to the man who robbed him. This led him to believe he had misidentified defendant as one of his assailants.

DISCUSSION

I. The Wheeler motion

Defendant claims the trial court erred when it failed to find a prima facie case of discrimination by the People in the exercise of their peremptory challenges. He contends the People exercised "its first three peremptory challenges" against the four Hispanic surnamed prospective jurors "[d]uring the first portion of voir dire." ³ Defendant concedes there was evidence in the record establishing a race-neutral basis for the peremptory challenge of Margarita Rocha. However, he claims the answers of the other two Hispanic prospective jurors to voir dire disclosed no reasonable basis for the exercise of the challenges. Defendant contends, therefore, he did establish a prima facie case under Wheeler, requiring the People to explain a race-neutral basis for the challenges.

A. Standard of review

A trial court's ruling on a Wheeler motion is reviewed for substantial evidence. (People v. Alvarez (1996) 14 Cal.4th 155, 196, 58 Cal.Rptr.2d 385, 926 P.2d 365.)

"Although such a ruling broadly resolves a predominantly factual mixed law-fact question, as a general matter, at least, it narrowly depends on the answer to a purely factual question .... It follows that the determinations underlying a ruling of this sort, that is, whether the defendant bore his burden of a prima facie showing of the presence of purposeful discrimination and, if he succeeded, whether the prosecutor bore his consequent burden of a showing of its absence, are themselves examined for substantial evidence: they are each reducible to an answer to a purely factual question, as identified above." ⁴ (Id. at pp. 196-197, 58 Cal.Rptr.2d 385, 926 P.2d 365.)

In People v. Wimberly (1992) 5 Cal.App.4th 773, 7 Cal.Rptr.2d 152, the court emphasized the deference that should be given to a trial court's ruling on a Wheeler motion:

"The determination of whether a defendant has established a prima facie case 'is largely within the province of the trial court whose decision is subject only to limited review. [Citations.]' [Citation.] On appeal, we examine the entire record of voir dire for evidence to support the trial court's ruling. [Citation.] Because of the trial judge's knowledge of local conditions and local prosecutors, powers of observation, understanding of trial techniques, and judicial experience, we must give 'considerable deference' to the determination that appellant failed to establish a prima facie case of improper exclusion. [Citation.]" (Id. at p. 782, 7 Cal.Rptr.2d 152.)

B. Burden of proof

The use of peremptory challenges to remove prospective jurors solely on grounds of presumed racial or other "group bias" is prohibited under both the federal and California Constitutions. (Batson v. Kentucky, supra, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69; People v. Wheeler, supra, 22 Cal.3d 258, 148 Cal.Rptr. 890, 583 P.2d 748.) "Group" bias refers to the situation where a person presumes that certain jurors are biased merely because the jurors are members of an identifiable group distinguished on racial, religious, ethnic, gender or similar grounds. (People v. Crittenden (1994) 9 Cal.4th 83, 115, 36 Cal.Rptr.2d 474, 885 P.2d 887; People v. Wheeler, supra, 22 Cal.3d at p. 276, 148 Cal.Rptr. 890, 583 P.2d 748.)

Any review of a trial court's ruling on a Wheeler motion must begin with a recognition of the presumption "that a party exercising a peremptory challenge is doing so on a constitutionally permissible ground." (People v. Wheeler, supra, 22 Cal.3d at p. 278, 148 Cal.Rptr. 890, 583 P.2d 748.) Therefore, the burden is on the moving party to "raise the point in a timely fashion and make a prima facie case of such discrimination to the satisfaction of the court." (Id. at p. 280, 148 Cal.Rptr. 890, 583 P.2d 748.) In order to satisfy this burden, the moving party must prove three things:

"First, as in the case at bar, he should make as complete a record of the circumstances as is feasible. Second, he must establish that the persons excluded are members of a...