Opinion
E066055
12-08-2017
THE PEOPLE, Plaintiff and Respondent, v. ERNEST AMAYA, JR., Defendant and Appellant.
Gregory L. Cannon, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina, Meagan J. Beale, and Annie Featherman Fraser, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. RIF1307006) OPINION APPEAL from the Superior Court of Riverside County. Irma Poole Asberry, Judge. Affirmed as modified. Gregory L. Cannon, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina, Meagan J. Beale, and Annie Featherman Fraser, Deputy Attorneys General, for Plaintiff and Respondent.
I
INTRODUCTION
After hearing evidence he stabbed one of his former inmates 25 times with a screwdriver, a jury convicted Ernest Amaya, Jr., of assault with a deadly weapon and found true the attending great bodily harm allegation. (Pen. Code, §§ 245, subd. (a)(1) & 12022.7, subd. (a).) As this was Amaya's third strike, he received an enhanced sentence of 28 years to life.
The jury found Amaya not guilty of attempted murder and attempted voluntary manslaughter.
Amaya raises three arguments on appeal. He contends his conviction must be reversed because the trial court erroneously refused to reopen evidence during jury instructions to allow additional impeachment testimony. Next, he contends the trial court erroneously denied his Batson/Wheeler motion. Finally, he argues and the People concede the trial court lacked authority to impose a lifetime weapons and ammunition ban. We will modify Amaya's sentence to delete the ban, but in all other respects we affirm the judgment.
Batson v. Kentucky (1986) 476 U.S. 79 (Batson); People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler).
II
FACTUAL BACKGROUND
A. Prosecution's Evidence
B.R., the victim in this case, testified he met Amaya in jail about two weeks before being released. B.R. was a tattoo artist and admired Amaya's tattoos. He offered Amaya his services after he was released.
B.R. was in custody for a parole violation. He has a 2003 conviction for attempted criminal sexual assault without consent, two convictions for failing to register, and two petty theft convictions.
About two or three weeks after his release, he gave Amaya a tattoo at the home of Brandi, a woman he was staying with at the time. He saw Amaya again a little while after that, when Amaya gave him and Brandi a ride home one evening. Sometime later, Amaya called B.R. and asked if he could do some tattoo work for his cousin, Lia. At the time, B.R. was using a storage unit in Riverside as his office and home base. He agreed to meet Amaya and Lia at the unit the following day.
B.R said he had smoked marijuana before Amaya and Lia arrived at the unit and had recently used methamphetamine (though he did not believe he had used that day). Lia sat on a chair next to B.R. while he used his computer to design the tattoo and Amaya stood next to Lia. B.R. and Lia talked for about 30 to 40 minutes about the design, then B.R. knelt down to put on surgical gloves before starting the work.
As he crouched over the gloves, something stabbed the left side of his back, near his armpit. He was shocked to see it was Amaya with a metallic object. He could not make any sense out of what was happening and pleaded with Amaya to stop. Lia was screaming hysterically and Amaya's face was "absolutely emotionless."
Amaya stabbed B.R.'s chest, puncturing both lungs, and stabbed him several times in his neck and his face. After more struggling, B.R. was able to push his way outside, but Amaya caught up to him just outside the unit and tackled him to the ground. Amaya straddled B.R. and continued to stab him. Finally, B.R. was able to push Amaya off him, and he struggled to run to the front office for help. The office was empty, but B.R. was able to call his ex-girlfriend. The paramedics arrived and took B.R. to Riverside Community Hospital where staff treated him over a period of about five days for two lung punctures and 25 stab wounds.
The storage facility's surveillance camera recorded the part of the struggle that took place outside the unit, and the prosecution played the video for the jury. According to the trial testimony, it depicts Amaya on top of B.R. for a few seconds then leaving with Lia after B.R. broke free.
Much of defense counsel's questions for B.R. involved his relationship with Brandi, the woman he was living with when he tattooed Amaya. Initially, B.R. testified he could not remember Brandi's name. He said they had a falling out when Brandi got angry with him for bringing a woman to her home. He said after the woman left, Brandi broke into his room and sexually assaulted him. The incident made him so uncomfortable that he called his ex-girlfriend and she helped him pack his belongings and leave. When they were about halfway finished moving his belongings, Brandi called the police to escort them out.
B.R. said he told Amaya about Brandi's sexual assault the night they discussed Lia's tattoo and Amaya seemed to make light of it. In response to defense counsel's questions, B.R. said he had talked to his parole agent about the sexual assault and mentioned it to the investigating detective, but had never filed an "official claim" against Brandi.
B.R. testified he believed he and Amaya had been on good terms before the attack and he could not understand why Amaya would want to hurt him. Defense counsel asked whether B.R. believed Brandi had hired Amaya to kill him, and B.R. replied that he did. Defense counsel asked why B.R. had been unable to remember the name of the person who had put a hit out on him, and he responded, "After what she did to me, why would I?"
Amaya's cousin Lia testified during the prosecution's case-in-chief and—as she had been during the police investigation—was reluctant to discuss the incident. She said she did not remember the incident very well due to the passage of time and in any event had not seen or heard much of what happened because she had been on her phone while B.R. was designing the tattoo.
Lia did recall, however, that when B.R. was getting ready to start the tattoo and had his back turned to them, Amaya gave her a look that said, "get out," and she immediately left the unit. She said, "when I did see them, they were just tussling like this, both of them equally." She heard B.R. say "Why?" multiple times, and she never saw B.R. with a weapon. After the incident, Amaya never said anything to her about B.R. having a gun or him having to defend himself. Amaya was silent on the drive home except to tell her to pull the car over so he could throw up.
When a detective interviewed Lia two days after the incident she asked, "What if [Amaya] gets mad at me?" and said, "Please don't tell [Amaya] that I talked to you."
The police searched the scene and found a screwdriver in a bag inside the unit, but no evidence of a firearm or ammunition, either inside or outside the unit. A forensic technician said the blood spatter inside the unit indicated the person who was bleeding was standing still or not moving much and was inconsistent with a two-person struggle.
B. Defense Evidence
Amaya claimed he had acted in self-defense. He testified he called B.R. for tattoo work shortly after B.R. had been released from custody. He was happy with B.R.'s work and recommended him to Lia.
Amaya and Lia arrived at the storage unit and waited while B.R. designed the tattoo. Amaya said B.R. was talking about his fallout with Brandi and asked Amaya for a ride to her house so he could break in and get his refrigerator. B.R. said he was going to "get his own justice" and trusted Amaya because he was "his boy." Amaya said B.R.'s comments made him feel "disrespect[ed] and angry" and he did not respond.
According to Amaya, B.R. became agitated at that point. He was squatting down in the back corner of the unit and looked over his shoulder at Amaya, giving him a "menacing look" and "negative vibes." Amaya motioned for Lia to get out of the unit because he felt something was not right. Amaya thought B.R. might be holding something but he was not sure because he was not wearing his glasses. He walked toward B.R. and when he got close enough he saw B.R. had a gun. Realizing he was too close to B.R. to run away, Amaya decided to fight. B.R. said he had "fucked up" and Amaya knew "too much." He then asked Amaya, "Why?"
B.R. slammed Amaya against the wall and the gun fell to the floor. Amaya kicked it to the corner of the unit. He noticed B.R. look over at something and followed his gaze to discover a screwdriver. Believing B.R. was going to reach for it, he grabbed it first. B.R. slammed him against the wall again and that is when Amaya began stabbing him in the back. Amaya said he "was stabbing him in the back while [B.R.] was trying to lift me off of my feet."
B.R. slammed Amaya to the ground and straddled him. Amaya began stabbing him in the face. Amaya got up and tried to leave, but B.R. ran towards him and tackled him just as he reached the doorway. Amaya said he took B.R.'s momentum and "reversed" the tackle so that by the time they landed outside the unit, he was on top of B.R. Amaya said this was why the surveillance camera shows him on top, even though B.R. was the aggressor.
Amaya said once they were outside, B.R. realized "I got the better of the fight, so he gave up and left." Amaya dropped the screwdriver and left the unit with Lia. He was not injured except for a bump on his head and a scraped knee.
Amaya's testimony about the incident contained multiple inconsistent statements. He initially testified he had motioned for Lia to leave once he saw B.R.'s menacing look, but later said he did so after B.R. mentioned wanting to break into Brandi's place, and still later said it was when he noticed the gun. He initially testified he had grabbed the screwdriver before B.R. was able to get it, but later said he had to wrestle the screwdriver from B.R. Additionally, some of Amaya's statements were contradicted by other trial evidence. For example, although Amaya testified B.R. slammed him against the wall at least twice, straddled him, grabbed his testicles, and choked him, Lia described the fight as an equal one, Amaya suffered no serious injuries, and the blood spatter in the unit appeared for the most part to have come from a stationary subject.
Amaya admitted he had lied to the police by saying he did not know B.R. and had never been to the storage unit. He said he lied because he did not like talking to the police and did not want to tell them B.R. had a gun. He acknowledged the first time he ever mentioned B.R. having a gun was during his trial testimony. He said he could not describe B.R.'s gun because he was "not that familiar with guns." He also testified, however, that he had been convicted of four robberies and a carjacking, during which one of his accomplices had been armed with a gun.
Brandi testified for the defense. When asked about one of her past crimes she disclosed having 27 felony convictions. She said she had let B.R. stay with her for a while and they had briefly shared a sexual relationship, before she contacted the state parole office to help her remove him from her home. Contrary to B.R.'s account, she said B.R. had filed a rape charge against her. She said she had met Amaya on only two occasions and denied having hired him to kill B.R.
III
DISCUSSION
A. Denial of Amaya's Motion to Reopen Evidence
Amaya contends the trial court abused its discretion in denying his motion to reopen evidence during jury instructions to present testimony that B.R. said he had filed a false rape charge against Brandi. As we explain, the court did not err. It issued a bench warrant for and gave Amaya numerous opportunities to locate the witness, whose testimony was cumulative and insignificant in any event.
1. Additional factual background
Potential defense witness Angeles was present in court on Tuesday, March 1, 2016. After the parties selected the jury, the court ordered Angeles to return to court when called by the defense. Angeles said he would be available within two hours of a telephone call.
Two days later, near the close of the prosecution's case-in-chief, Amaya's counsel told the court he had left a voicemail telling Angeles to be in court at 1:30 p.m. that afternoon to testify, but Angeles had not shown. Counsel said he was also having trouble reaching Brandi. He said he would put Amaya on the stand and "play it by ear at the end of today's testimony."
Amaya testified that day, and the next morning counsel informed the court he had again been unable to reach Angeles, despite numerous phone calls. At counsel's request, the court issued a bench warrant for Angeles and set bail at $5,000. Amaya finished his testimony that day (which was a Friday) and the court granted counsel's request to excuse the jury early so he could have the weekend to contact Angeles and Brandi. The court excused the jurors at 10:50 a.m. and ordered them to return the following Monday morning. The parties then proceeded to discuss jury instructions with the court. At the end of that discussion, defense counsel said he was hopeful Angeles and Brandi would be ready to testify on Monday, but if they were not Amaya was going to want a continuance "because he believes these witnesses are crucial." Counsel added, "I think we have a difference of opinion on how important the witnesses are."
The court informed counsel its tentative ruling would be to deny any request for continuance, explaining it had already given counsel that day and the coming weekend to contact the witnesses, and the calendar judge had already previously postponed trial in part because of "the need to have [Brandi] and the need to have her available."
The following Monday morning, defense counsel reported Brandi was ready to testify but Angeles's whereabouts remained unknown. Counsel said he believed Brandi was the "more important witness," the one with "more direct inside information," and he "may not need Mr. Angeles, in light of the fact [Brandi] is here."
After Brandi testified, defense counsel told the court, "I know that my client would like me to ask for a continuance to see if he can secure the presence of [Angeles]." As an offer of proof, he said Angeles would "testify to the fact that [B.R.] shared with him directly that he filed a false claim of rape against Brandi." The court denied the continuance, explaining that Angeles's testimony would be cumulative of Brandi's and counsel had already had at least four days to locate him. The court observed the jury already had heard testimony that B.R. lied about not filing a rape charge against Brandi, from Brandi herself, who had "candidly testified on behalf of defense." "So that information has already been given to our trier of fact. To have a second witness come in for that same purpose, I don't know that that would be helpful. [¶] The probative value, when we look at adding to trial time, the delay that's already occurred here, I don't see that it offers much for our trier of fact. So I'm going to deny the request."
After both sides rested and as the court was instructing the jury, Angeles appeared in court. The court denied defense counsel's request to reopen evidence, stating it had already ruled Angeles's testimony was unduly cumulative under Evidence Code section 352 when counsel had given his offer of proof.
2. Analysis
"We review for abuse of discretion a trial court's ruling on a motion to reopen a criminal case to permit the introduction of additional evidence." (People v. Marshall (1996) 13 Cal.4th 799, 836 (Marshall).) "In determining whether an abuse of discretion occurred, the reviewing court considers four factors: '"(1) the stage the proceedings had reached when the motion was made; (2) the defendant's diligence (or lack thereof) in presenting the new evidence; (3) the prospect that the jury would accord the new evidence undue emphasis; and (4) the significance of the evidence."'" (People v. Masters (2016) 62 Cal.4th 1019, 1069 (Masters).)
Courts considering this issue tend to focus on the timing of the motion and the significance of the proposed evidence. For example, in Marshall, a capital murder case, the California Supreme Court concluded the trial court's refusal to reopen evidence was reasonable because the defendant's request came late in the trial and the proposed testimony was not particularly important. (Marshall, supra, 13 Cal.4th at pp. 835-836.) During the prosecution's case-in-chief, two witnesses had testified the defendant was wearing a white suit on the night of the crimes. (Id. at p. 835.) After both sides had rested, the defendant sought to reopen evidence to impeach these witnesses with a witness who would testify white suits were commonplace in the defendant's community. (Ibid.) In finding no abuse of discretion, our high court observed the motion was made after both sides had rested and the testimony was not particularly important because the "primary" evidence against the defendant was the testimony of a victim who was shot during the murders and played dead when the defendant walked up to her with a gun. (Id. at p. 836.) Because her identification of the defendant did not depend on a description of his clothing, the relevance of the proposed sartorial testimony to the jury's guilt determination was "slight." (Ibid.)
Masters is also instructive. There, the defendant moved to reopen evidence during jury deliberations to question one of the People's witnesses about the prosecutorial benefits he had received in exchange for testifying against him. (Masters, supra, 62 Cal.4th at pp. 1064-1066.) The trial court found the benefits the witness received "were effectively disclosed during [the witness's] testimony" and denied the motion. (Id. at p. 1066.) The California Supreme Court affirmed the court's ruling, concluding "the additional evidence [defendant sought to introduce] was not materially different than what the jury already knew." (Id. at p. 1069.)
Here, like in Marshall and Masters, Amaya made his motion after both sides had rested and the testimony he sought to present was cumulative and not particularly relevant to the jury's determination of guilt. Amaya argues the evidence was crucial because it would have diminished B.R.'s credibility regarding his relationship with Brandi and thus potentially regarding his description of the incident. Amaya is correct B.R.'s credibility was a crucial issue during trial. The outcome of the case essentially boiled down to whether the jury believed B.R.'s version of the fight or Amaya's. However, we do not agree Angeles's testimony was important to that determination. According to the offer of proof, he would have told the jury he heard B.R. say his rape accusation was false. But whether B.R. had filed a formal charge against Brandi and whether that charge was grounded in reality were tangential to the central issue of whether B.R. pulled a gun on Amaya in the storage unit. And, more importantly, the jury had already heard testimony to impeach B.R. on that minor issue, from Brandi herself. Indeed, Amaya's own counsel acknowledged to the trial court that Angeles was a less significant witness than Brandi.
Having reviewed the trial testimony, we do not place much importance on additional testimony about B.R.'s fraught relationship with Brandi. B.R.'s own testimony showed him to be somewhat of an unreliable narrator when it came to his one-time roommate. It was clear the relationship was a sore point for him. He claimed not to remember her name while also blaming her for his near fatal wounds, opining that Amaya had seemed like a friend who would never intentionally hurt him without outside influence. In addition, Brandi's testimony about her brief relationship with B.R. called his credibility into question in ways that Angeles—whose connection to B.R. or Brandi is unclear—could not. In our view, Angeles was not necessary to impeach B.R. on this side issue. It was highly likely the jury already viewed B.R.'s perception of what had happened between him and Brandi with suspicion.
Moreover, Angeles's testimony would impeach only the part of B.R.'s testimony regarding his suspected motive for Amaya's attack. It would not impeach his description of the attack itself, which was detailed and, frankly, more believable than Amaya's. Amaya gave conflicting and at times incredible testimony about what happened during those few minutes in the storage unit. Hearing a second witness testify that B.R. had falsely accused Brandi of raping him would not have improved Amaya's credibility, which the jury obviously found suspect. The assault verdict shows the jury found B.R.'s description of the fight the more credible version, regardless of what it may have thought about B.R.'s testimony regarding Brandi.
Amaya argues Brandi's testimony needed Angeles's corroboration because she was a convicted felon whom the jury might have trouble trusting. However, such could be said about both B.R. and Amaya, and in any event, there is no indication from the record that Angeles does not also have a criminal history. That he would have been a more credible witness than Brandi is speculation on Amaya's part.
Finally, we recognize Amaya was not to blame for the lateness of the motion to reopen evidence. As Amaya points out, his trial counsel was diligent in trying to secure Angeles's appearance in court. However, counsel's diligence is only one factor of the analysis and we find the cumulative and insignificant nature of the proposed testimony more important to our analysis. We therefore find no abuse of discretion.
B. Denial of Amaya's Batson/Wheeler Motion
Amaya contends the trial court erred in denying his Batson/Wheeler motion after the prosecutor used three of her peremptory challenges to excuse Hispanic female potential jurors. As we explain, we agree with the trial court Amaya failed to establish a prima facie case of discrimination.
1. Voir dire and the challenged prospective jurors
V.A. was an insurance broker. She raised her hand when the prosecutor asked whether anyone believed he or she would not make a good juror. She explained the role made her anxious—"to think that I could put somebody who is innocent in prison." The prosecutor responded it would be the People's job to prove the defendant was not innocent, and V.A. said, "That is what scares me. I'm sorry to interrupt. But that scares me to put somebody who is innocent in prison." When the prosecutor asked whether V.A. could convict if the evidence proved guilt beyond a reasonable doubt, V.G. responded, "yes," but the prosecutor commented, "Okay. That was—that does not instill much confidence."
The following exchange ensued:
"[V.A.]: I watch Investigation Discovery every day. That is why my husband last night was telling me you need to stop watching that show.
"[PROSECUTOR]: You do need to stop. And I'm a big fan of those shows, too. And it puts us lawyers in a very difficult situation because, as you know, this is not nearly as sexy and exciting as you see on television. Right?
"[V.A.]: It's just there has been people put in prison that were innocent, and that scares me. I said how can people sleep at night after convicting somebody?
"[PROSECUTOR]: So as you sit here today, will you be able to put that out of your mind in making a decision or not?
"[V.A.]: Yes and no. It's just—I guess it depends on what I see."
Later, when the prosecutor asked if anyone knew someone who had been arrested for any crime, V.A. said her brother-in-law had been arrested for domestic violence. She explained she had been there when he was arrested, but had not been interviewed as a witness. "Pretty much after it happened, I don't want nothing to do with this and—because they were both under the influence." She said her brother-in-law had gone to jail for two days but she did not think he had been prosecuted.
R.M. did part-time work babysitting and cleaning offices. She was married and had four children. She said her daughter lived with her, but then said none of her children lived at home. She had also raised her hand when the prosecutor asked whether anyone believed he or she would not make a good juror.
R.M. said, "I have four kids, and most of the time when they break something or they're in trouble, the four of them, they won't talk. So for me, it will be time out for the four of them. And then later on one of them—the oldest will say, but I didn't do it. I wasn't here. And I go, well, you're guilty, too, because—you're not here but you know who did it and you still don't tell me. So—and then later on when I'm more relaxed, I just go, like, I made a mistake. But the four of them are kind of guilty because they don't tell me what they did or who did it." The prosecutor responded R.M. would be able to hear both sides of the story in this case, and R.M. said, "But sometimes when they tell me who did it . . . I feel like I did wrong, so I go and apologize."
The prosecutor asked R.M. to imagine she had just baked a chocolate cake and told her four children not to touch it, then later saw one of them had chocolate on his face and fingers and a chunk was missing from the cake. The prosecutor asked, "Do you feel confident that you can make a decision about who ate your cake?" R.M. responded, "No. But I will—I love to bake. I love chocolate. But I still say don't touch the cake." After follow up questions, R.M. said she would be able to decide which child had eaten the cake in that hypothetical situation.
When the prosecutor asked if she would be able to look at the evidence to determine guilt in this case, R.M. responded, "Well, like I say, I will be kind of like—after making, like, a decision, even when you present evidence, I will say, I don't know. Maybe I'm wrong. Because sometimes we all look so innocent and then you hear that they did something really bad. And then you go, like, wow . . . I didn't think—I didn't think he did it." The prosecutor said, "It sounds to me like you don't feel very confident that you can do that." R.M. replied, "Well, we're humans. And then I will say, Wow! Look at your face. And I thought you never would do something like that but you did. So you go, like, gee, I don't know anything about you or the person who's guilty or my neighbor or my husband. I never thought he would do something like that." The prosecutor asked R.M., "Do you think that you're gullible?" to which R.M. replied, "I'm not sure." Later, when the court was discussing challenges for cause with counsel, the prosecutor mentioned she had considered moving to excuse R.M. for cause but concluded she was "just noncommittal rather than not willing," and the court agreed.
M.G. was a salesperson and a single mother of six-year-old twins. She had never served on a jury but did have experience with the criminal justice system. She said, "I went through a case just in December where my ex-boyfriend just got sentenced to three years for domestic violence against companionship." She said her ex-boyfriend had gotten into a fight with her cousins "which went all wrong, and then he got caught with a gun." She said there had been some confusion about her role in the incident and the prosecution had believed she was one of the victims. The prosecution had called her when her ex-boyfriend was being sentenced and she asked to have the restraining order protecting her removed. "I told them I've been wanting to have communication. [¶] They actually placed a restraining order for my protection because I was a victim, which it was just a misunderstanding, confusion. I don't know. But I told them that I want to have communication. I want to be there for him." She said the prosecution ended up "dropp[ing]" the restraining order.
M.G. also said her best friend had been convicted of attempted murder "back when we were 18." She added, "But it doesn't affect my decision. I know he's a good guy. It's just that he was there at the wrong situation with other bad people where they ended up blaming it on him because he was the driver pretty much." When the prosecutor asked if she could listen to a police officer and determine what he or she was saying, M.G. said "No."
2. Amaya's motion
After the prosecutor had used her peremptory challenges to excuse M.G., V.A., and R.M, as well as two male prospective jurors, Amaya's counsel made a Batson/Wheeler motion, stating, "Counsel for the People is a wonderful person; however, she has kicked off four—no—one, two—three Latina women who I had positive marks for. They appeared to me to all be fair. And being as my client is a Latino male, I feel it is my responsibility, at minimum, to make that motion." Counsel did not provide any additional facts or reasoning to support his argument, and the court asked him if he wanted to add anything else to his prima facie case. Counsel said no, but noted at least two, maybe three, Hispanic females remained in the jury box. "I will note for the record that there is—I see there is a—currently a Latina female in space No. 1, a Latina female, if (TJ05) is Latina, in space No. 5, and potentially—I don't know if (TJ07) is Latina . . . I'm not sure. She's Asian of some variety. But there are a couple of Latina females still on the panel. I'll leave it at that."
As the court took a moment to consider its prima facie ruling, the prosecutor offered to provide her reasons for striking the challenged prospective jurors. The court responded, "That's fine. Go ahead." The prosecutor explained she doubted whether M.G. could be fair to the People because she had not wanted prosecution of her ex-boyfriend for domestic violence and had "also seemed to find a way to justify [the] behavior" of "her friends who are in for violent crimes." As to V.A., the prosecutor doubted she was Hispanic and believed she simply had a Hispanic married name. In any event, she believed V.A.'s affinity for "forensic files-type shows" would impede her ability to consider the evidence fairly and would inflate the prosecution's burden of proof. Finally, as to R.M., the prosecutor believed the prospective juror had been "very noncommittal" about whether she could "find anyone guilty of anything."
The court noted the dispute as to V.A.'s ethnicity but found she fell into the cognizable group of Hispanic women. The court ruled Amaya had not established a prima facie case and denied the motion.
3. Analysis
The use of peremptory challenges to exclude prospective jurors based on race or ethnicity is unconstitutional. (Wheeler, supra, 22 Cal.3d at pp. 276-277; Batson, supra, 476 U.S. at p. 97.) It violates a criminal defendant's Fourteenth Amendment right to equal protection, as well as the right to trial by a jury drawn from a representative cross-section of the community under the California Constitution. (People v. Gutierrez (2017) 2 Cal.5th 1150, 1157.)
"There is a rebuttable presumption that a peremptory challenge is being exercised properly, and the burden is on the opposing party to demonstrate impermissible discrimination." (People v. Bonilla (2007) 41 Cal.4th 313, 341 (Bonilla).) The Batson/Wheeler inquiry consists of three steps. "First, the opponent of the strike must make out a prima facie case by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose in the exercise of peremptory challenges. Second, if the prima facie case has been made, the burden shifts to the proponent of the strike to explain adequately the basis for excusing the juror by offering permissible, nondiscriminatory justifications. Third, if the party has offered a nondiscriminatory reason, the trial court must decide whether the opponent of the strike has proved the ultimate question of purposeful discrimination." (People v. Scott (2015) 61 Cal.4th 363, 383, citing Johnson v. California (2005) 545 U.S. 162, 168 (Johnson).)
"'When a trial court denies a Wheeler motion without finding a prima facie case of group bias, the appellate court reviews the record of voir dire for evidence to support the trial court's ruling.'" (People v. Guerra (2006) 37 Cal.4th 1067, 1101, overruled on another point in People v. Rundle (2008) 43 Cal.4th 76.) "'We will affirm the ruling where the record suggests grounds upon which the prosecutor might reasonably have challenged the jurors in question.'" (People v. Guerra, at p. 1101.) Where, as here, it is unclear whether the trial court applied the correct "reasonable inference" standard or the former "strong likelihood" standard overruled in Johnson, "we independently decide whether the record permits an inference that the prosecutor excused jurors on prohibited discriminatory grounds." (People v. Garcia (2011) 52 Cal.4th 706, 747 (Garcia).)
In Johnson, the United States Supreme Court reversed People v. Johnson (2003) 30 Cal.4th 1302, in which the California Supreme Court confirmed that the relevant California standard—even if it sometimes had been expressed as a "'reasonable inference'"—was to show that it was "more likely than not" that purposeful discrimination had occurred. (Id. at p. 1306.) "The high court disapproved this exacting standard for federal constitutional purposes, and said that a prima facie burden simply involves 'producing evidence sufficient to permit the trial judge to draw an inference' of discrimination." (Garcia, supra, 52 Cal.4th at pp. 746-747, citing Johnson, supra, 545 U.S. at p. 170.)
Additionally, in cases like this one, where the trial court finds the defendant failed to establish a prima facie case of discrimination but allows the prosecutor to state his or her reasons for excusing the juror, the appellate court should begin by reviewing the step one (prima facie) ruling. (People v. Scott, supra, 61 Cal.4th at p. 391.) If the appellate court agrees with the trial court's ruling, this resolves the defendant's Batson/Wheeler claim. If the appellate court disagrees and finds the defendant had established a prima facie case, it then reviews the trial court's step three ruling on the plausibility of the prosecutor's stated reasons. (People v. Scott, at p. 391.)
Here, we can confidently conclude the trial court was correct in determining Amaya failed to establish a prima facie case of discrimination. Our high court's analysis in Bonilla is instructive to our analysis. In Bonilla, the defendant raised a Batson/Wheeler claim based on discrimination against African-American prospective jurors. The only evidence he presented in support of his motion was the fact the prosecution had excused the only two African-American prospective jurors in a 78-person juror pool. (Bonilla, supra, 41 Cal.4th at p. 342.) Our high court agreed with the trial court that this evidence was insufficient to trigger step two of the Batson/Wheeler inquiry, explaining, the small size of the sample—"two of two"— made drawing an inference of discrimination from the sample size alone "impossible." (Bonilla, at pp. 342-343.) The court also noted the defendant had not argued the prosecution's questioning of the two African-American prospective jurors "was cursory or materially different from the questioning of non-African-American [prospective] jurors." (Id. at p. 343.)
The court identified certain types of evidence that are "especially relevant" to a prima facie case of discrimination: "'[T]he party may show that his opponent has struck most or all of the members of the identified group from the venire, or has used a disproportionate number of his peremptories against the group. He may also demonstrate that the jurors in question share only this one characteristic—their membership in the group—and that in all other respects they are as heterogeneous as the community as a whole. Next, the showing may be supplemented when appropriate by such circumstances as the failure of his opponent to engage these same jurors in more than desultory voir dire, or indeed to ask them any questions at all. Lastly, . . . the defendant need not be a member of the excluded group in order to complain of a violation of the representative cross-section rule; yet if he is, and especially if in addition his alleged victim is a member of the group to which the majority of the remaining jurors belong, these facts may also be called to the court's attention.'" (Bonilla, supra, 41 Cal.4th at p. 342, italics added.) The defendant's failure to present any of these types of evidence coupled with the fact "the information elicited in voir dire showed race-neutral reasons for excusing both prospective jurors" formed the basis of the court's conclusion that the defendant's evidence was insufficient to give rise to an inference of discrimination. (Id. at p. 343)
Here, the evidence Amaya offered in support of his Batson/Wheeler claim was even weaker than the evidence in Bonilla. Like the defendant in Bonilla, Amaya did not contend the prosecutor's questioning of the challenged prospective jurors was cursory or materially different from the questioning of non-Hispanic prospective jurors. (Bonilla, supra, 41 Cal.4th at p. 343.) Nor could he, as the record shows the prosecutor asked them the same types of questions she asked the other prospective jurors, and then spent significant time further questioning them when their responses raised concerns. (See People v. Cleveland (2004) 32 Cal.4th 704, 733 [far from engaging the challenged prospective jurors "in more than desultory voir dire" or failing to ask them "any questions at all," "[h]ere the prosecutor tried to question them further, which [] suggests a nonracial motivation for their excusal"].)
Unlike in Bonilla, however, the prosecutor in Amaya's case did not excuse 100 percent of the members in the challenged group from the jury pool. Amaya's counsel's statements about the ethnic makeup of the jury pool at the time of his motion suggest there was a total of five or six Hispanic women in the jury pool when the prosecutor excused M.G., V.A., and R.M. In other words, far from arguing the prosecutor had excused "most or all" of the members of the cognizable group (Bonilla, supra, 41 Cal.4th at p. 342), Amaya's counsel argued she had excused about half. Three out of five or six is not a seemingly disproportionate number of a cognizable group. (See People v. Bell (2007) 40 Cal.4th 582, 598 [mere fact the prosecutor excused two out of the three African-American women in the jury pool was insufficient to establish a prima facie case of discrimination], disapproved of on another ground by People v. Sanchez (2016) 63 Cal.4th 665.) Furthermore, we cannot discern from the record counsel made what percentage of the total number of female Hispanic prospective jurors the prosecutor excused or whether the empaneled jury included any female jurors of Hispanic descent. When a defendant fails to provide any statistical information suggesting disparate treatment of a large percentage of the cognizable group, it is essentially impossible for a trial court to infer a discriminatory purpose. (Garcia, supra, 52 Cal.4th at p. 747 ["we have found it '"impossible,"' as a practical matter, to draw the requisite inference where only a few members of a cognizable group have been excused and no indelible pattern of discrimination appears"].)
As our high court has explained, Batson/Wheeler claims like Amaya's consisting of no more "than an assertion that a number of prospective jurors from a cognizable group had been excused" are "particularly weak." (People v. Panah (2005) 35 Cal.4th 395, 442.) "Such a bare claim falls far short of 'rais[ing] a reasonable inference that the opposing party has challenged the jurors because of their race or other group association.'" (Ibid.) A prima facie "demonstration entails, at the least, making as complete a record as feasible . . . [and d]efense counsel's cursory reference to prospective jurors by name, number, occupation and race was insufficient." (People v. Yeoman (2003) 31 Cal.4th 93, 115.) Amaya failed to supplement his claim with statistical evidence demonstrating a pattern of discrimination or evidence of a disparate questioning style on behalf of the prosecution. He presented nothing more than the fact M.G., V.A., and R.M were Hispanic women.
Finally, as was the case in Bonilla, the record reveals legitimate, race-neutral reasons for excusing the prospective jurors. Both V.A. and R.M. said they did not think they would make good jurors. V.A. habitually watched a forensic television show that made her extremely afraid of sending an innocent person to prison. R.M. expressed significant doubt she could determine a person's innocence or guilt. She talked about how a person's looks can be deceiving and how surprising it can be to learn a nice looking person has done something bad. These statements prompted the prosecutor to ask R.M. if she was gullible, and R.M.'s response did not inspire confidence—she said she was not sure. M.G.'s issue was different. Her ex-boyfriend had been convicted of engaging in domestic violence against her cousins and her best friend had been convicted of attempted murder. The way she described both situations could be read as her justifying, or overlooking the seriousness of her ex-boyfriend's and her best friend's criminal behavior. Additionally, M.G. said she would not be able to listen to a police officer to determine what he or she was saying. These responses would reasonably raise a prosecutorial concern M.G. might be biased against law enforcement or, more broadly, the criminal justice system. "[P]eremptory challenges are not challenges for cause" and thus may be made on an "'apparently trivial'" basis. (People v. Jones (1998) 17 Cal.4th 279, 294.) Our record review satisfies us there were race-neutral, and even nontrivial, reasons for excusing M.G., V.A., and R.M.
Amaya contends we should reverse the trial court's ruling because the prosecutor's stated reasons for excusal were pretextual and based on mischaracterizations of the challenged prospective juror's statements. Although we find nothing pretextual or incorrect about the prosecutor's stated reasons, Amaya misunderstands the Batson/Wheeler inquiry. A trial court is not required to evaluate the prosecutor's reasons for excusing a challenged prospective juror until the defendant establishes a prima facie case of discrimination. (Garcia, supra, 52 Cal.4th at p. 746.) Because Amaya failed to trigger step two of the analysis and the record discloses race-neutral reasons for excusing the challenged prospective jurors, we need not review the plausibility of the prosecutor's reasons for excusal. We therefore affirm the trial court's Batson/Wheeler ruling.
C. Weapon Ban
At sentencing, the trial court ordered that Amaya not "own, possess, have under his immediate possession or control any firearm, deadly weapon, ammunition, or related paraphernalia or incendiary device"; the abstract of judgment does not contain this order, however. Amaya argues the weapon ban is an unauthorized sentence, and the People agree, pointing out that no statute or other authority prescribes such a ban. We too are aware of no such authority. "A sentencing court has a duty to impose the punishment prescribed by law ([Pen. Code,] § 12), and has no discretion to deviate from the statutorily specified penalty." (People v. Martinez (2015) 240 Cal.App.4th 1006, 1012.) We therefore strike the trial court's order prohibiting Amaya from possessing the above listed weapons.
As the People point out, our striking the court's order has no real practical consequence for Amaya because the Penal Code makes it a crime for a felon to own or possess a firearm. (See Pen. Code, § 29800, subd. (a)(1).) --------
IV
DISPOSITION
We strike the weapon ban as set out in the May 13, 2016 minute order, and otherwise affirm the judgment.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
SLOUGH
J. We concur: RAMIREZ
P. J. McKINSTER
J.