Opinion
C082649
10-28-2019
THE PEOPLE, Plaintiff and Respondent, v. DANIEL ROSAS, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. Nos. STKCRFDV20140008858, SF130284A)
Defendant Daniel Rosas got into an argument with his daughter R.D. into which his wife S.D. intervened. During the ensuing confrontation between S.D. and defendant, S.D. sustained a laceration to the forehead that left a visible scar. Following a jury trial, defendant was convicted of corporal injury to a spouse with a great bodily injury enhancement. He was sentenced to serve a seven-year state prison term.
On appeal, defendant contends: (1) the trial court erred in admitting his utterance of a racial slur during the argument with his daughter; (2) the trial court's ruling that the defense exercised a racially discriminatory peremptory challenge was prejudicial error; and (3) the seven-year state prison term was an abuse of discretion. We conclude there was no abuse of discretion in admitting the evidence, the trial court's ruling on the peremptory challenge did not prejudice defendant, and defendant's failure to object to his sentence forfeits the issue on appeal. The judgment is affirmed.
Prosecution Case
Defendant, his wife S.D., and their daughters R.D. and G.D. went to a family barbeque on July 27, 2014. Defendant and S.D. drank alcohol while they were there. S.D. drove the family home when they left.
Defendant and R.D. got into an argument over her boyfriend during the 10 to 15 minute drive home. R.D.'s boyfriend was African-American; during the argument, defendant used a racial slur in reference to him. S.D. intervened in the argument and told defendant to stop talking to her daughter that way.
S.D. and defendant argued the rest of the way home, and kept arguing as they went into the house. Defendant appeared to be drunk. R.D. was outside the house talking on her phone; when the argument got loud, she would look in through the door that led to the house to check on her parents. She eventually told her parents to stop fighting and to leave each other alone.
Defendant told R.D. to mind her own business. As he addressed his daughter, defendant made contact with one of the straps on her tank top, causing it to rip and tear away from her shirt. S.D. eventually got between defendant and R.D., trying to separate them.
According to S.D.'s testimony, after she pushed defendant away from R.D., defendant pushed S.D., which sent her to the floor. S.D. got up and attacked defendant, grabbing his throat. They wound up wrestling on the living room couch. S.D. choked defendant by the throat with one hand for about 30 seconds. The next thing she remembered, she was on the floor on her hands and knees, bleeding from her forehead. S.D. did not know how she sustained the cut, but believed it could have been caused by her wedding ring.
R.D. testified that she had gone out of the house after S.D interceded, but came back into the house when she heard her mother scream. When R.D. entered the house, she saw S.D. in the living room, crouched over and kneeling on all fours. Her mother was bleeding from the forehead and there was a lot of blood on the carpet. Defendant, who was crying, knelt next to S.D. Upon noticing R.D., defendant stood up, looked at her, and said he was sorry, then looked at S.D. and said that he loved her.
R.D. grabbed a towel to help with the bleeding and called 911. R.D. felt her father was out of control that night; she told him to leave several times and had to start punching him before he left the house. This was not the first time her parents fought, as they had a long history of domestic violence.
Stockton Police Officer John Cox was dispatched to the scene at around 12:41 a.m. S.D was lying on the floor in the living room. There was blood near the couches and on the tile floor by S.D. S.D. was very emotional and crying. She had a hard time speaking at the house, so Officer Cox talked to her at the hospital.
S.D. told Officer Cox the argument in the car happened because defendant was upset R.D. was dating an African-American, which angered R.D. At one point R.D. left the car. S.D. and defendant wrestled in the car, after which S.D. drove home and parked in the driveway. Defendant left the car and went into the garage, where he tried to close the door while S.D. was still outside. As S.D. tried to get into the garage, defendant pushed her, knocking her glasses off of her head. She eventually made her way into the house, where they continued to argue.
When R.D. came back into the house, defendant began to argue with her. S.D. put herself between R.D. and defendant to protect R.D.; she and defendant then began to wrestle. Defendant eventually threw S.D. onto the couch. The next thing S.D. remembered, she was bleeding but she did not know how it happened. Defendant said, "I'm going to be going to jail for a long time" and apologized to her.
R.D. told Officer Cox the argument started because defendant was mad at her for dating an African-American. Defendant had been drinking that night; she knew how her father got when he drinks and she knew his temper. R.D. got so upset she jumped out of the car when they got closer to home. When she entered the house, defendant confronted her, grabbed at R.D., causing her shirt to tear. S.D. got between the two of them, and then started arguing with defendant. They eventually fought near the couch area. R.D. left the home at some point during the argument, and saw S.D. on the floor bleeding when she returned. Defendant was kneeling on the floor next to S.D., apologizing to her. Defendant then got his things together and left the house in the family car.
In an August 5, 2015 interview about the incident with Stockton Police detective Tom Quinones, S.D. said defendant was arguing with R.D. about her boyfriend, which continued into the home, where S.D. defended her daughter by getting between her daughter and defendant and pushing him. Defendant pushed her to the ground, but she got back up, pushed him again, and somehow wound up on the couch. As defendant was on top of her and going to hit her, S.D. put up her hands to block his punches. S.D. believed defendant hit her hand, causing her hand to strike into her head that was then cut by her wedding ring. R.D. came in and told defendant to leave, so he left in S.D.'s car and with her cell phone. Defendant eventually told her he then went to a bar, where he and his friends cleaned up the blood that was on him.
S.D. sustained a laceration that ran vertically from her eyes up to her hairline. The injury was treated by a plastic surgeon, but the scar was still visible.
The Defense
Defendant testified that he had been hurt in the neck about a week before the barbecue. He could not afford the pain medication the doctor prescribed for him, so he took an unidentified pain medication that S.D. got from a coworker. This medication, which he did not stop taking until that day of the party, made him feel angry, depressed, suicidal, and moody.
Defendant did not want to go to the barbecue because he was uncomfortable around S.D.'s family and the medication was making him irritable. He and S.D. both drank at least five or six shots of alcohol during the barbecue. The argument on the way home started because of R.D.'s attitude during the barbecue then escalated to her boyfriend. During the argument, he used "the N word" in reference to R.D.'s boyfriend, a term he never used before. This upset R.D., causing her to raise her voice.
When they were about three minutes from arriving home, defendant told R.D. to "shut the F up," which caused things to get very quiet. R.D. jumped out of the car when they got into the driveway. S.D. got out of the car to follow R.D., so defendant parked the car in the garage and went in the house to put G.D. to bed. He heard S.D. and R.D. in the garage so he came out, and, still upset, told R.D. to "get the F over here."
R.D. walked away into the house and defendant followed, still screaming at her. S.D. confronted him, asking why he was talking to his daughter like that. He heard R.D. in the garage again, so he returned there and continued the confrontation with her. As he reached for R.D.'s shoulder to pull her to look at him, defendant caught her strap and ripped her tank top.
S.D. "lost it" and started pushing and hitting him. Trying to get away from her, defendant went back into the house. An angry and upset S.D. followed him. As defendant turned to get back into the garage, S.D. grabbed his neck and squeezed. S.D. would not let go, but defendant was able to move her hands off of him and then move away. He felt pain in the area of his wound and was not sure if it opened up as a result of S.D.'s squeezing. S.D. attacked his neck a second time, when defendant was near the couch. Defendant was afraid for his life; he was in pain and feared bleeding out. As they wrestled on the couch, defendant thought the wound would open again.
Defendant told S.D. to let go but she would not. Defendant pushed her and swung his arms so she would release the grip on his neck. They fell together, and defendant saw blood was running out of S.D.'s forehead. Defendant did not know what happened to her. He was in shock and had been defending himself. Defendant got a towel for her wound and tried to help her, but S.D. told him not to touch her. He left when R.D. told him to leave.
Any domestic violence before this incident was initiated by S.D. attacking defendant. This included a 2006 incident where S.D. attacked defendant and he hit her back, which led to him pleading guilty to a felony. Another example was a 2009 incident where S.D. initially falsely accused defendant and his girlfriend of punching her, causing his probation to be violated. Rather, S.D.'s neighbor assaulted defendant with a gun at S.D.'s apartment complex while defendant's girlfriend punched S.D.
DISCUSSION
I
Racial Slur Evidence
Defendant contends it was reversible error for the trial court to admit defendant's statement referring to R.D.'s boyfriend by a racial slur for African-Americans.
During the hearing on in limine motions, defendant sought to exclude evidence of the fact that, during the argument on the drive home from the barbecue, defendant referred to R.D.'s boyfriend with "a word that's highly inflammatory and prejudicial to people of the African-American descent." Counsel asked "that any reference to the exact word not come into this trial" on Evidence Code section 352 grounds. The prosecutor responded that the term shows defendant, who planned to present a self-defense theory, initiated the conflict, and also explained why he went after his daughter due to his racial bias against her African-American boyfriend. The trial court found defendant's use of "a racist term to describe his daughter's boyfriend" was a source of the dispute with his daughter over the boyfriend, was highly probative, and its admission outweighed any potential prejudice.
The trial "court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will . . . create substantial danger of undue prejudice." (Evid. Code, § 352.) We will only reverse an exercise of the trial court's discretion under Evidence Code section 352 if " 'the court exercised its discretion in an arbitrary, capricious or patently absurd manner,' " resulting in a manifest miscarriage of justice. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124.)
The Supreme Court held admission of the racial slurs of an accused murderer used to describe the victim is not so inflammatory that their probative value was substantially outweighed by their potential for undue prejudice (Evid. Code, § 352; People v. Quartermain (1997) 16 Cal.4th 600, 627-629 (Quartermain).) First, evidence of racial slurs is probative. Among other things, it demonstrates "enmity by an accused murderer towards the victim" that is "a relevant factor in deciding whether the murder was deliberate and premeditated because it goes to the defendant's motive. [Citations.]" (Id. at p. 628.) Second, although racial slurs are despicable, they are "regrettably not so unusual as to inevitably bias the jury against the defendant." (Ibid.) Racial slurs, therefore, are admissible because "racial epithets [are] not so inflammatory that their probative value [is] substantially outweighed by their potential for undue prejudice." (Ibid.)
Defendant asserts Quartermain, supra, 16 Cal.4th 600 is not relevant because his target of racial animus was not the victim, but to R.D.'s boyfriend. This difference does not render the reasoning of Quartermain inapposite here. Defendant's use of a racial slur against R.D.'s boyfriend helps to explain he was the aggressor in the confrontation between himself and his daughter that escalated to a confrontation with his wife that led to the domestic violence. It was therefore relevant to rebut his claim of self-defense.
Applying Quartermain, supra, 16 Cal.4th 600, we conclude there was no abuse of discretion in admitting the reference to defendant's racial slur. Since the evidence was properly admitted, defendant's due process claim is also without merit. (See People v. Harris (2005) 37 Cal.4th 310, 336 ["the application of ordinary rules of evidence does not implicate the federal Constitution"].)
II
Batson/Wheeler Ruling
A.
Procedural Background
Defendant's contention involves prospective juror No. 7 (juror 7). She was a claims representative for the Social Security Administration, her spouse was a forklift operator, and they had a daughter in college. Juror 7 did not know any attorneys or staff at the prosecutor's or public defender's office, and did not know any parties or witnesses in the case. Juror 7 had served as a juror before, in a civil and in a criminal case, and could "be fair on both sides." The criminal case happened six years earlier, and the jury reached a verdict. The civil case happened two years ago, and juror 7, who was an alternate, did not participate in the deliberations.
The following exchange took place when defense counsel asked juror 7 about the prior jury service:
"[Juror 7]: The criminal trial that I was on was actually a little difficult. We weren't determining guilt because the person -- it was a murder case -- um, and the person had already -- I guess acknowledged that they were guilty. We had to determine the level, whether it was first degree or second degree. We had to determine the level and the, um -- according to the law. So we did follow those rules and things. But it was just a, um -- a difficult task, emotionally.
"[Defense Counsel]: So it wasn't a whodunit, it was sort of what they were thinking when they did the act.
"[Juror 7]: Right, or was there malice or was there a fight involved, and some other laws that they gave us that we had to adhere to. I think the difficult part was, um, seeing the family members run out of the courtroom crying at the end. It touched me a little bit. And I'm being honest.
"[Defense Counsel]: I need you to be. That's, remember, part of your civic duty.
"So, um, anybody that's been part of a murder trial as a juror, as a defense attorney, or a judge, it's very hard to see any family members. And is that -- in this particular case it's also not a whodunit, but a why or how or for what reason will come into play.
"Do you think that that type of trial -- do you think you're gonna go back to that murder case, you're gonna have uncomfortable thoughts about it?
"[Juror 7]: No. I was -- I'm able to be objective and to -- to weigh out everything and to -- even in deliberation we were able to do that without any problems, to, um, look at the laws that the judge had given to us, and his rules, and instructions, and follow it.
"I don't have a problem with those type of things, but I'm full of empathy."
"[Defense Counsel]: Sure.
"[Juror 7]: So as I see people hurt, it naturally -- you feel something.
"[Defense Counsel]: Right.
"[Juror 7]: But we did -- I was able to follow and put my own -- my own feelings aside and do what I needed to do. And I could still do that.
"[Defense Counsel]: Any problem with defense counsel in that case? Did you feel that they were trying to mislead you or anything like that?
"[Juror 7]: No.
"[Defense Counsel]: Okay. And how long ago was that?
"[Juror 7]: I'm saying maybe six years, but it seems like the last few juries I've been on I was selected, so maybe it was four years ago or . . . somewhere up in there."
Defense counsel had no further exchange with juror 7 and subsequently exercised the defense's tenth and final peremptory challenge on this prospective juror. The prosecutor then made a Batson/Wheeler motion based on the challenge to juror 7, noting this was the third African-American peremptorily challenged by the defense. Defense counsel replied: "She . . . indicated she's very empathetic. She's also been on a criminal jury where she had difficulty in, um, determining the instructions on a murder case between first, second degree, or the causation, so she expressed difficulty in that type of case, which is this is similar because it's not a whodunit, it would be causation. So, um, we want to address this outside the presence of the jury and I have the particular reasons as to each person that was excused and I used my peremptories, so."
The court found counsel gave her reasons and it determined a prima facie case had been made, and proposed seating juror 7 as a remedy. Counsel said she had not "gone through this process" and would like to state her reasons for excluding the other prospective jurors on the record to preserve them. The court replied counsel could state her reasons, but that was the remedy it was considering. After counsel stated she was entitled to argue before the court rules, the court replied: "I will say I'm considering this individual only, in spite of [the prosecutor's] argument with regard to the other African-Americans that you've excused. I'm just considering [juror 7's] responses and I believed [the prosecutor] has made a prima facie case. You've given your reasoning and I've made my ruling." The trial court then seated juror 7 for trial and found defense counsel had exercised her final peremtory challenge.
B.
Analysis
"Both the United States and California Constitutions prohibit discriminatory use of peremptory strikes. [Citations.] To assess whether such prohibited discrimination has occurred, our inquiry under Batson/Wheeler follows three distinct, familiar steps. First, the party objecting to the strike must establish a prima facie case by showing facts sufficient to support an inference of discriminatory purpose. [Citation.] Second, if the objector succeeds in establishing a prima facie case, the burden shifts to the proponent of the strike to offer a permissible, nonbiased justification for the strike. [Citation.] Finally, if the proponent does offer a nonbiased justification, the trial court must decide whether that justification is genuine or instead whether impermissible discrimination in fact motivated the strike. [Citation.]" (People v. Reed (2018) 4 Cal.5th 989, 999.)
Defendant contends the trial court erred because a prima facie case had not been established, the reasons for the challenge provided by defense counsel were race neutral, and the prosecution failed to establish purposeful discrimination. He additionally contends the alleged error is reversible per se. We need not determine whether the trial court erred because defendant has not established prejudice from the alleged error.
A panel of this court addressed the problem of an improperly granted Batson motion against the defendant in People v. Singh (2015) 234 Cal.App.4th 1319 (Singh). The defendant in Singh contested the trial court's decision granting the prosecution's Batson motion regarding the defense's use of peremptory challenges against potential Caucasian jurors. (Id. at p. 1322.) The defendant argued on appeal that "the trial court erred in granting the prosecution's motion, and further, that this erroneous grant of the motion—coupled with a threat to impose sanctions against defense counsel for any further improper peremptory challenges—chilled his trial counsel's advocacy during the rest of voir dire and accordingly resulted in an unfair trial." We declined to reach the contention that the court erred in granting the Batson motion "because, even if the trial court erred, defendant has failed to establish any resulting prejudice." (Id. at p. 1329.)
Central to our ruling was the premise that "structural error exists only in a very limited class of cases (generally involving an impingement on the right to counsel or self-representation, bias on the part of the court or jury, a defective instruction on reasonable doubt, the denial of a public trial, and an erroneous denial of a Wheeler-Batson motion) in which the error has the effect of rendering the factfinding process unreliable, or causing the trial to be fundamentally unfair. [Citation]." (Singh, supra, 234 Cal.App.4th at p. 1330.) However, if "there was adequate legal representation and an absence of any bias on the part of the court or jury, most constitutional errors are subject to review for prejudice. [Citation.]" (Ibid.)
Since "the constitutional right to an impartial jury at trial that is at issue, and the inclusion of a juror who is competent and unbiased does not impair that right (even if the juror is personally objectionable to the defendant), it is not a structural error, nor can a defendant ordinarily establish any prejudice from the error. [Citation.]" (Singh, supra, 234 Cal.App.4th at p. 1330.) In the absence of structural error, the judgment is presumed correct; this presumption cannot be overcome by a silent record. (Ibid.) The defendant therefore must identify the error and affirmatively establish a resulting miscarriage of justice. (Ibid.) "Mere speculations of prejudice are insufficient to carry this burden. [Citation.]" (Id. at p. 1331.) Since "an error in overruling a peremptory [challenge] does not result in any fundamental unfairness, or interference with the reliability of the jury's factfinding function," it was not structural and the defendant was required to establish prejudice. (Id. at p. 1331.) The defendant in Singh could not show bias or other grounds for cause to excuse the jurors sitting pursuant to the trial court's ruling, so the contention failed for failure to establish prejudice. (Id. at p. 1332.)
Defendant claims Singh is inapposite because the defendant in that case "had not exhausted his peremptory challenges so he could have still challenged the juror." Not so. The citation defendant relies on was made in reference to preserving claims regarding the erroneous denial of peremptory challenges (see Singh, supra, 234 Cal.App.4th at p. 1332) and states: "This requires the exhaustion of peremptory challenges (or a valid justification for the failure to do so), and an objection in the trial court to the jury as finally constituted. [Citation.] Arguably, defendant fails to satisfy these prerequisites in the present case, as we do not find his hesitation to exhaust his remaining challenges to be reasonable. . . . However, given the categorical absence of prejudice in this situation, we dispose of the issue on its merits." (Id. at p. 1332, fn. 12.)
Whether or not a defendant exercised all available peremptory challenges, the erroneous denial of a peremptory challenge "is not reversible error absent a showing that the defendant's right to an impartial jury was thereby affected; this requires a showing that the juror was either biased or otherwise properly subject to a challenge for cause. [Citation.]" (Singh, supra, 234 Cal.App.4th at p. 1332.) Here, defendant makes no such showing. We conclude defendant has not established prejudice from the alleged error.
III
Sentencing
The trial court imposed a seven-year state prison term consisting of a three-year middle term for the domestic violence offense and a consecutive four years for the enhancement. Defendant claims this was an abuse of discretion. The contention has no merit.
At sentencing, the trial court stated: "[I]f members of defendant's family arrived here today believing that pleas to the Court may result in probation and counseling, or some sentence other than a state prison commitment, the law does not allow that. . . . I have no authority to impose such a sentence in this case." After argument from defense counsel, requests for a lesser sentence from S.D., R.D., and defendant's mother, defendant addressed the court, apologizing to S.D.'s family for the last two years, stating the trial was the hardest thing he ever went through and that he was getting his life on the right track until backsliding for the two years up to the incident. Claiming he was not a monster but a good husband and father, defendant asked for a lesser term.
After hearing argument from the prosecutor, the trial court found the crime had a terrible impact on the family, as R.D. had to find her mother lying on the floor bleeding, but defendant did not acknowledge the impact of the event and his personal responsibility for it. Stating it had read the summary of aggravating and mitigating factors in the probation report and noting defendant had no prior prison record, the trial court imposed the seven-year term.
"A trial court's decision to impose a particular sentence is reviewed for abuse of discretion and will not be disturbed on appeal 'unless its decision is so irrational or arbitrary that no reasonable person could agree with it.' [Citation.]" (People v. Jones (2009) 178 Cal.App.4th 853, 860.) " 'The burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review.' [Citation.]" (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977-978.)
Defendant first claims the trial court was unaware it had discretion to order probation if this constituted an unusual case. (Pen. Code, § 1203, subd. (e)(4) [prohibiting probation for someone twice convicted of a felony absent a showing of an unusual case where the interests of justice would best be served by probation].) He further contends there are numerous circumstances that make this case different. Defendant asserts it was only "fortuitous circumstances" that caused the injury to S.D., he was free of any serious violation of the law for eight years, defendant was provoked by S.D. attacking him, he and S.D. were under the influence of alcohol at the time of the incident, and his prior criminal record should be considered insignificant in light of the rocky relationship between defendant and S.D. He additionally argues the trial court's reasons for the sentence were inadequate by focusing solely on what happened after the incident, and defendant's lack of remorse could not be used since he denied guilt and the evidence of guilt was not overwhelming. Defendant claims the trial court should have either struck the great bodily injury enhancement or imposed the lower term due to the "unique circumstances of this case." Finally, he concludes sending him to prison for seven years does not serve the public interest.
Defendant did not object to the trial court's statement regarding his eligibility for probation, forfeiting the contention on appeal. (People v. Scott (1994) 9 Cal.4th 331, 353.) "[C]omplaints about the manner in which the trial court exercises its sentencing discretion and articulates its supporting reasons cannot be raised for the first time on appeal." (Id. at p. 356.)
Defendant's remaining challenges to his sentence have no merit. Defendant disagrees with the trial court's exercise of its discretion by interpreting the facts and circumstances in a manner most favorable to him. For example, the trial court did not have to believe the testimony that defendant was provoked by S.D. attacking him.
In sum, defendant has a prior felony conviction for domestic violence involving the same victim as in the present case. His statements show a lack of remorse for the damage the domestic violence (as opposed to the trial) did to his family. Based on the record, we conclude it was well within the trial court's discretion to impose the middle term for the crime and enhancement.
DISPOSITION
The judgment is affirmed.
/s/_________, J.
HOCH We concur: /s/_________
HULL, Acting P. J. /s/_________
ROBIE, J.
Batson v. Kentucky (1986) 476 U.S. 79 69; People v. Wheeler (1978) 22 Cal.3d 258.