Opinion
NOT TO BE PUBLISHED
San Mateo County Super. Ct. Nos. SC056418A, SC056418B
RUVOLO, P. J.
Introduction
In this appeal by two jointly tried criminal defendants, the principal issue is whether the prosecutor at their trial systematically exercised peremptory challenges in a manner designed to exclude Hispanics, African-Americans, and women from the jury. Our review of the record has convinced us that in considering this issue, the trial judge failed to conduct the necessary comparative juror analysis, and did not make the requisite “sincere and reasoned” determination that the prosecutor’s proffered nondiscriminatory reasons for the disputed peremptory challenges were, in truth, the reasons for the challenges.
Accordingly, we stay this appeal, and remand to the trial court for a further hearing on the principal issue of the prosecutor’s peremptory challenges to jurors, consistent with this opinion. If the hearing on remand results in a determination that appellants are entitled to a new trial, almost all of the other issues raised on this appeal, which are numerous and complex, will be moot. Accordingly, in the interests of judicial economy, this opinion addresses only two of those additional issues, both of which will need to be decided even if a retrial is required. We conclude that Sedeno can be retried on the enhancement that the jury at appellants’ first trial found not to be true, and that Navarro is not entitled to a separate trial from Sedeno. If appellants are not granted a new trial, then the stay will be dissolved and we will consider those contentions raised on this appeal that we have not addressed in this opinion, as well as any new issues that may arise as a result of the remand.
We asked the parties to file supplemental briefs on the issue whether this court procedurally could stay this appeal and remand the case for a further Batson-Wheeler analysis, consistent with this opinion. While the parties differ as to whether a combined stay and remand is the best course for this court to follow, counsel agree that there is no authority precluding this court from proceeding in this fashion.
The fact that we choose to decide these two additional issues is not intended to imply in any way how the trial court should decide the motions relating to the exercise of the prosecution’s peremptory challenges upon remand.
Facts and Procedural Background
Because this opinion addresses only procedural issues, we need not recite the facts in detail. Suffice it to say that in the early morning of January 12, 2003, Raymond Gardner was killed by a bullet through the neck while he was asleep in the front passenger seat of a car traveling on a Bay Area freeway. Several other bullets were also fired, but the driver of the car in which Gardner was riding, and the two occupants of another car traveling in tandem with it, escaped injury.
The bullets all came from a white SUV that was traveling on the same freeway. After an extended pursuit, police officers stopped the SUV and arrested its occupants, among whom were appellants Tito Sedeno, who was driving, and John Navarro, who was sitting in the front passenger seat. Appellants were charged with the murder of Gardner (Pen. Code, § 187 ), and with three counts of attempted murder (one count for each of the other occupants of the targeted cars). Sedeno was also charged with evading a police officer (Veh. Code, § 2800.2) during the police pursuit of the SUV, which began after the car was spotted outside a restaurant about an hour after the shots were fired, and with being a felon in possession of a firearm. (§ 120221, subd. (a).)
All further statutory references are to the Penal Code unless otherwise noted.
The principal factual issue in the case was which of the occupants of the SUV fired at the other cars. One of them, Richard Sedillo, was given immunity from prosecution and placed in a witness protection program. He testified that appellants each fired shots at both of the other cars. Appellants each sought to prove that Sedillo was the sole shooter. In the alternative, Navarro and Sedeno each contended that if there were two shooters, the second shooter was not himself, but his codefendant.
After appellants’ first trial, the jury was able to reach verdicts only on two issues. It found Sedeno guilty of evading a police officer, and made a not true finding on one enhancement charged against Sedeno. The enhancement was for personal use of a firearm causing great bodily injury or death (§ 12022.53, subds. (c), (d)), and was pleaded in connection with the murder charge, which was not the count on which Sedeno was convicted. Ultimately, the trial court declared a mistrial due to the jury’s inability to reach any other verdicts.
On this appeal, Sedeno does not challenge his conviction on that count.
Jury selection for the subsequent retrial began with the completion of written questionnaires by the prospective jurors, followed by 10 days of voir dire. On the sixth day of jury selection, which was August 10, 2005, appellants’ trial counsel made the first of a series of motions challenging the prosecutor’s peremptory challenges on the ground that the prosecutor was systematically excluding prospective jurors of Hispanic or African-American origin. On the following day, the grounds for appellants’ Batson-Wheeler motions were expanded to include gender. All told, appellants’ trial counsel made four Batson-Wheeler motions, and the trial court denied all of them. Ultimately, the jury that tried appellants included nine Caucasians, one Hispanic, and two Filipinos.
As is commonly done, we will refer to these defense motions as Batson-Wheeler motions, after Batson v. Kentucky (1986) 476 U.S. 79 (Batson) and People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler), overruled in part by Johnson v. California (2005) 545 U.S. 162 (Johnson).
The second trial ended with guilty verdicts of murder and attempted murder against both appellants. On appeal, they contend that the trial judge committed numerous errors, but their primary argument is that the court erred in denying their Batson-Wheeler motions.
Discussion
Denial of Batson-Wheeler Motions
Basic Batson-Wheeler Principles
“ ‘A prosecutor’s use of peremptory challenges to strike prospective jurors on the basis of group bias-that is, bias against “members of an identifiable group distinguished on racial, religious, ethnic, or similar grounds”-violates the right of a criminal defendant to trial by a jury drawn from a representative cross-section of the community under article I, section 16 of the California Constitution. [Citations.] Such a practice also violates the defendant’s right to equal protection under the Fourteenth Amendment to the United States Constitution. [Citations.]’ [Citation.] When a defendant believes his or her constitutional rights are being violated by the exercise of a peremptory challenge, Batson[, supra, 476 U.S. 79] requires that the defendant ‘[f]irst... make out a prima facie case “by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose.” [Citation.] Second, once the defendant has made out a prima facie case, the “burden shifts to the State to explain adequately the racial exclusion” by offering permissible race-neutral justifications for the strikes. [Citations.] Third, “[i]f a race-neutral explanation is tendered, the trial court must then decide... whether the opponent of the strike has proved purposeful racial discrimination.” [Citation.]’ [Citation.]” (People v. Hutchins (2007) 147 Cal.App.4th 992, 996-997.)
In the third step of the Batson-Wheeler analysis, “ ‘the persuasiveness of the justification becomes relevant, ’ ” and “[t]he trial court is required to make a ‘ “ ‘sincere and reasoned’ ” ’ evaluation based on the circumstances before it. [Citation.]” (People v. Hutchins, supra, 147 Cal.App.4th at p. 997.) Moreover, “the opponent of a peremptory challenge generally does not have the burden of proving purposeful race discrimination by clear and convincing evidence.” (Ibid.) Rather, the applicable standard is whether purposeful discrimination has been proven by a preponderance of the evidence. (Ibid.)
Prima Facie Case
On June 13, 2005, about a month and a half before jury selection began in appellants’ second trial, the United States Supreme Court decided Johnson, supra, 545 U.S. 162. In Johnson, the high court overruled long-standing prior California Supreme Court case law on the burden of proof for the initial step in a Batson-Wheeler motion. Under Wheeler, the rule in California had been that that a defendant making a Batson-Wheeler motion had to show, in order to make a prima facie case, that it was more likely than not that the prosecution’s peremptory challenges were based on group bias. In Johnson, the U.S. Supreme Court held that “a defendant satisfies the requirements of Batson’s first step by producing evidence sufficient to permit the trial judge to draw an inference that discrimination has occurred.” (545 U.S. at p. 170, italics added.)
E.g., People v. Johnson (2003) 30 Cal.4th 1302, reversed by Johnson, supra, 545 U.S. 162; People v. Wheeler, supra, 22 Cal.3d 258).
In this case, when the prosecutor responded to the defense’s initial Batson-Wheeler motions, he unfortunately misstated the rule in Johnson, supra, 545 U.S. 162. Specifically, in response to the first motion, the prosecutor stated that “[a]ccording to the new Supreme Court case that has come down, the court has to find that it has a strong suspicion that that is in fact the motivation for any single exercise of peremptory in order for either side to have-to then justify and give nonprotected class excuses.” (Italics added.) The trial judge responded, “Thank you. I don’t find that yet.”
In response to the defense’s next Batson-Wheeler motion, later the same day, the prosecutor stated, “Again, under the new Supreme Court, same standard. Strong suspicion. Then the court can ask for reasons.” The judge replied, “Well, I don’t have a strong suspicion, no, but I’m of course always curious and perhaps-.” At that point, the prosecutor interjected, “We’ll follow the same procedure as I indicated. [See discussion, post.] The Court doesn’t have a strong suspicion. It’s not sustaining the motion.” It was not until the following day that defense counsel correctly pointed out that under Johnson, the standard was “reasonable inference, ” not “strong suspicion.”
In response to the first Batson-Wheeler motion, after stating that he did not have a strong suspicion that the prosecutor’s peremptories were race-based, the trial judge added that “with respect to each challenge, there appears to be, on the surface, reasons which I can which I [sic] understand as a former trial lawyer, reasons to do that besides race.” This is not the test for determining whether a party has made a prima facie case on a Batson-Wheeler motion, particularly after Johnson, supra, 545 U.S. 162. Rather, the test is whether the moving party can point to facts that could justify a reasonable inference that the peremptories were discriminatory. If so, the process moves to the second step, in which the prosecution must state its reasons for each disputed peremptory.
The “procedure” to which the prosecutor referred (see ante) was that, as he explained when defense counsel made their first motion, “our instruction is even if... the court doesn’t find the proper cause[, ] to place into the record, the reasons and justification.” (Cf. People v. Bonilla (2007) 41 Cal.4th 313, 343, fn. 13 [better practice is to have prosecutor give race-neutral explanation for peremptories contested under Batson-Wheeler; trial and appellate courts may consider those reasons even if prima facie case was not made].) Based on this policy, the prosecutor did in fact offer nondiscriminatory reasons for all of the peremptories as to which the defendants made Batson-Wheeler motions.
As both parties point out in their briefs, the prosecutor’s having given reasons for his disputed peremptories moots any issue as to whether the trial judge applied the wrong standard, or otherwise erred, in determining whether or not appellants had made a prima facie case. (See People v. Lenix (2008) 44 Cal.4th 602, 613, fn. 8.) Nonetheless, the trial judge’s apparent lack of familiarity with the correct prima facie standard in assessing a Batson-Wheeler motion serves to reinforce our conclusion (see discussion, post) that the judge failed to engage in the necessary analysis of the prosecutor’s proffered reasons for the challenges.
Third StepAnalysis
As noted ante, during the argument on the first, prima facie step of the Batson-Wheeler analysis in the present case, the trial judge offered that “with respect to each challenge, there appears to be, on the surface, reasons which I can which I [sic] understand as a former trial lawyer, reasons to do that besides race.” It is not clear from the record whether the trial judge also applied this methodology at the third step of the Batson-Wheeler analysis, but if he did so, this was error.
At the third step, the test is not whether the trial judge can conceive of reasons that would have been valid if the prosecutor were in fact relying on them. Rather, the test is whether the judge believes that the nondiscriminatory reasons actually offered by the prosecution were in fact the reasons behind the challenge. (People v. Lenix, supra, 44 Cal.4th at pp. 624-625; People v. Phillips (2007) 147 Cal.App.4th 810, 818 [“The court is not permitted to substitute its conjecture or surmise for the actual reasons declared by the prosecutor.”]; accord, Paulino v. Castro (9th Cir. 2004) 371 F.3d 1083, 1090 [“it does not matter that the prosecutor might have had good reasons to strike the prospective jurors. What matters is the real reason they were stricken.” (Original italics.)].)
Moreover, as already noted, the third stage of the Batson-Wheeler analysis requires the trial judge to make a sincere and reasoned evaluation of the prosecutor’s proffered justifications for the challenges. (People v. Hutchins, supra, 147 Cal.App.4th at p. 997.) Nothing in the record of this case indicates that the trial judge engaged in such an analysis before denying any of appellants’ Batson-Wheeler motions. At no point did the judge explicitly address any of the arguments made by defense counsel as to why they believed the prosecutor’s stated reasons, even if facially valid, were pretextual, nor did he make any factual findings with regard to the prosecutor’s sincerity. In this respect, this case resembles Snyder v. Louisiana (2008) 552 U.S. 472, in which the prosecutor explained that his peremptory challenge was based in part on the potential juror’s demeanor, but “the record [did] not show that the trial judge actually made a determination concerning [the juror’s] demeanor”; rather, “the trial judge simply allowed the challenge without explanation.” (Id. at p. 479.) Given those circumstances, the United States Supreme Court declined to defer to the trial judge, but instead performed its own comparative juror analysis, and reversed the conviction.
Thus, the contention in respondent’s brief that “[t]he trial court properly examined the justifications articulated by the prosecutor and found them credible and reasonable” is simply not borne out by the record. We therefore do not owe the deference to the trial court’s rulings that would otherwise apply. (See People v. Hamilton (2009) 45 Cal.4th 863, 900-901 [“existence or nonexistence of purposeful racial discrimination” in prosecutor’s peremptory challenges is question of fact, as to which reviewing court “accord[s] deference to the trial court’s ruling when the court has made a sincere and reasoned effort to evaluate each of the stated reasons for a challenge to a particular juror” (italics added)]; see id. at p. 907 [when ruling on Batson-Wheeler motion, trial court “must make ‘a sincere and reasoned attempt to evaluate the prosecutor’s explanation....’ ”]; see also People v. Lenix, supra, 44 Cal.4th at pp. 613-614 [review is deferential “ ‘[s]o long as the trial court makes a sincere and reasoned effort to evaluate the nondiscriminatory justifications offered....’ ” (Italics added.)].)
Respondent also argues that appellants’ Batson-Wheeler argument is undercut by the fact that the prosecution ultimately accepted a panel that included at least three non-white jurors. This may constitute evidence to consider in assessing the contested peremptories, but the law is clear that it does not vitiate appellants’ claim. (See, e.g., Paulino v. Castro, supra, 371 F.3d at pp. 1090-1091 [prosecution’s acceptance of one Black juror did not vitiate defendant’s Batson-Wheeler argument regarding exercise of peremptory challenges against other Black jurors].)
Moreover, because we do not have the benefit of the trial judge’s findings on the key question of the sincerity of the reasons the prosecutor gave for the contested peremptory challenges, it is difficult, if not impossible, for us to decide, in the first instance, the Batson-Wheeler issues raised in appellants’ briefs. In circumstances like these, it is appropriate for California appellate courts to remand cases to the trial courts to conduct post-conviction hearings on Batson-Wheeler motions that were made at trial, but not correctly or adequately dealt with by the trial court. (People v. Johnson (2006) 38 Cal.4th 1096, 1099-1104; see also, e.g., People v. Hutchins, supra, 147 Cal.App.4th at pp. 998-999; People v. Rodriguez (1999) 76 Cal.App.4th 1093.) Based on our review of the record in this case and the applicable case law, we conclude that such a remand is necessary in this case.
Comparative Juror Analysis
Appellants argue in their briefs in this court, as they did in the trial court, that a comparison of White jurors whom the prosecutor accepted with the non-White jurors whom he challenged demonstrates that the challenges were actually made for racially discriminatory reasons. As part of the third-step analysis in deciding a Batson-Wheeler motion, the trial court must complete a comparative juror analysis if that issue is raised as part of the defense motion. As the California Supreme Court put it, “it is the trial court’s duty to ‘assess the plausibility’ of the prosecutor’s proffered reasons for striking a potential juror ‘in light of all evidence with a bearing on it.’ [Citation.]” (People v. Lenix, supra, 44 Cal.4th at p. 625, original italics, quoting Miller-El v. Dretke (2005) 545 U.S. 231, 252.) Thus, “comparative juror evidence is most effectively considered in the trial court... where the trial court can evaluate [defense counsel’s comparative analysis] arguments based on what it has seen and heard.” (People v. Lenix, supra, at p. 624.) Here, the record contains no indication that the trial judge conducted such an analysis before denying appellants’ Batson-Wheeler motions.
When feasible, a comparative juror analysis can be conducted by the reviewing court based on the facts in the record, even if it was not conducted below. (People v. Lenix, supra, 44 Cal.4th at p. 607.) In the present case, however, we have concluded that a remand is necessary so that the trial judge can make the necessary findings as to the sincerity of the prosecutor’s proffered reasons for the challenges. Inasmuch as the results of a comparative juror analysis may well have a direct bearing on that issue, it makes more sense to remand to the trial court for that purpose as well. For the guidance of the trial court, we suggest that the Ninth Circuit’s opinion in Ali v. Hickman (9th Cir. 2009) 584 F.3d 1174, 1183-1193, provides a good model for the level of scrutiny of the facts which courts are constitutionally expected to perform when conducting such an analysis.
Severance Issue
Prior to the second trial, Navarro moved to sever his trial from that of Sedeno. The motion was denied. On appeal, Navarro contends this was error.
As Navarro acknowledges, the Legislature has expressed a statutory preference for joint trials of jointly charged defendants. (§ 1098; People v. Coffman and Marlow (2004) 34 Cal.4th 1, 40 (Coffman).) “When defendants are charged with having committed ‘common crimes involving common events and victims, ’ as here, the court is presented with a ‘ “classic case” ’ for a joint trial. [Citation.]” (Ibid.)
Even so, separate trials “may be appropriate ‘in the face of an incriminating confession, prejudicial association with codefendants, likely confusion resulting from evidence on multiple counts, conflicting defenses, or the possibility that at a separate trial a codefendant would give exonerating testimony, ’ ” or “when ‘there is a serious risk that a joint trial would compromise a specific trial right of one of the defendants, or prevent the jury from making a reliable judgment about guilt or innocence.’ [Citations.]” (Coffman, supra, 34 Cal.4th at p. 40.)
The decision whether to grant a motion for severance is committed to the discretion of trial courts, in light of the facts before them at the time the motion is made, and our review of their exercise of that discretion is very deferential. (Coffman, supra, 34 Cal.4th at p. 41; People v. Burney (2009) 47 Cal.4th 203, 236.) “Even if a trial court abuses its discretion in failing to grant severance, reversal is required only upon a showing that, to a reasonable probability, the defendant would have received a more favorable result in a separate trial. [Citation.]” (Coffman, supra, 34 Cal.4th at p. 41.) “If the [trial] court’s joinder ruling was proper when it was made, ” reversal may be granted only upon a showing that “joinder ‘ “resulted in ‘gross unfairness’ amounting to a denial of due process.” ’ [Citation.]” (People v. Lewis (2008) 43 Cal.4th 415, 452.)
Navarro argues that severance should have been granted because his and Sedeno’s defenses were antagonistic, in that they each argued that if Sedillo was not the only shooter, then the second shooter was his codefendant rather than himself. However, the fact that two defendants will each attempt to blame the other for the crimes with which they are both charged does not require that the two be tried separately. (See People v. Hardy (1992) 2 Cal.4th 86, 167-171.) “If the fact of conflicting or antagonistic defenses alone required separate trials, it would negate the legislative preference for joint trials and separate trials ‘would appear to be mandatory in almost every case.’ [Citation.]” (Id. at p. 168.) Thus, “[a]ntagonistic defenses do not warrant severance unless the acceptance of one party’s defense would preclude acquittal of the other.” (People v. Burney, supra, 47 Cal.4th at p. 239, italics omitted.)
Here, both Navarro and Sedeno rested their defense in large part on the theory that Sedillo was the sole shooter. Accepting this defense would permit the jury to acquit both defendants. Accordingly, the case on which Navarro relies-U.S. v. Tootick (9th Cir. 1991) 952 F.2d 1078-is distinguishable, because in that case, it was undisputed that the two jointly tried defendants, together with the victim, were the only persons present when the crime was committed.
Navarro has not pointed to any specific prejudice he incurred due to his joint trial with Sedeno. In fact, at the first trial, Navarro and Sedeno each managed to persuade at least some of the jurors that there was a reasonable doubt as to his culpability. Accordingly, Navarro has not made a showing sufficient to convince us that the trial court erred in declining to try the two men separately.
Retrial on Enhancement Found Not True in First Trial
As already noted, the jury at appellants’ first trial returned a not true finding on the personal use of a firearm enhancement attached to the murder charge against Sedeno. Prior to the second trial, Sedeno moved to enter a double jeopardy plea on the enhancement, and to preclude the prosecution from retrying the issue. The trial judge denied the motion on the ground that the verdict had never been accepted or recorded by the court, because it was returned in violation of the court’s instruction. The court’s instruction had been that the jurors were to deliberate on the enhancement only if they first found the defendant guilty on the underlying murder charge. Sedeno contends that this ruling was in error, and that retrial on the enhancement was barred by double jeopardy.
On this point, both parties rely on Santamaria v. Horsley (9th Cir. 1998) 133 F.3d 1242 (Santamaria). In that case, the jury found not true an enhancement that a murder defendant personally used a knife, but convicted the defendant on other charges. After the conviction was reversed on appeal, the defendant sought to preclude the state from retrying him on the underlying murder charge, based on evidence that he stabbed the victim with a knife. The Ninth Circuit held that retrial on the underlying charge was not precluded by the not true verdict on the enhancement, even though one of the prosecution’s theories of culpability was that the defendant stabbed the victim.
In Santamaria, however, the state did not seek to retry the defendant on the enhancement itself. (Santamaria, supra, 133 F.3d at p. 1244.) Indeed, the Ninth Circuit noted (albeit in dicta) that a retrial on the enhancement would have been precluded by double jeopardy principles. (Id. at p. 1245 [“There is no dispute that the jury determination on the weapons enhancement issue properly barred the State from seeking the enhancement on retrial, because the ultimate fact of whether the State had proven the weapon use beyond a reasonable doubt for the enhancement had been determined already.”].) In any event, the not true verdict as to the enhancement was part of an overall verdict that was accepted by the trial court, and only later reversed on appeal. Thus, Santamaria does not assist us in determining whether retrial was permissible in the present case, where the original jury’s verdict on the enhancement was reached in violation of the instructions, was never accepted by the court, and was not incorporated into any judgment. (Cf. People v. Scott (2000) 85 Cal.App.4th 905, 918-924 [doctrines of res judicata and collateral estoppel do not preclude retrial in criminal case if prior proceeding did not result in final judgment].)
Fortunately, there is other authority bearing on this point. In People v. Allen (1974) 41 Cal.App.3d 821, the defendant was charged both with attempted murder and with assault with a deadly weapon, based on a single shooting with a single weapon. An enhancement allegation charging personal use of a firearm was attached to each of the substantive charges. As in the present case, the jury was instructed to decide the enhancement allegation only if it found the defendant guilty on one of the substantive charges. The jury acquitted the defendant of attempted murder, but deadlocked on the assault charge, resulting in a mistrial. Despite the judge’s instruction to the contrary, the jury also found that the allegation of personal firearm use was not true as to the attempted murder count. The defendant persuaded the trial court that retrial on the assault count was barred by double jeopardy, but the Court of Appeal reversed, holding that “[t]he jury’s special verdict that defendant did not use a firearm was necessarily surplusage” in light of the acquittal on the underlying substantive count, and that “the jury’s finding was beyond the scope of its duties and should be disregarded.” (Id. at p. 826.)
We find People v. Allen, supra, 41 Cal.App.3d 821 persuasive. The jury acted in direct violation of the court’s instructions by rendering a partial verdict on an enhancement without first deciding the substantive charge. The resulting finding is a legal nullity, and does not preclude a retrial on the enhancement. Accordingly, we find no error in the trial judge’s ruling here permitting the prosecution to retry the arming enhancement allegation against Sedeno.
Disposition
This appeal is hereby stayed, and the case is remanded to the trial court for a further hearing on the Batson-Wheeler issue. If the trial court determines on remand that one or more of appellants’ Batson-Wheeler motions should have been granted, the court shall enter an order granting appellants a new trial. If the trial court does not grant a new trial, counsel shall promptly notify this court, whereupon the stay of this appeal will be dissolved, and appellants may renew all of the contentions raised in the current appeal that are not addressed in this opinion, as well as any new issues that may arise as a result of the remand. To that end, the clerk of this court is directed to retain the record and briefs filed in connection with this appeal, pending further order of this court.
We concur: REARDON, J., RIVERA, J.