Filed 1/22/20 P. v. Espinoza CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE,

Plaintiff and Respondent,

v.

MANUEL DION ESPINOZA,

Defendant and Appellant.

2d Crim. No. B292414

(Super. Ct. No. 18CR02572)

(Santa Barbara County)

A jury convicted Manuel Espinoza of inflicting corporal injury on John Doe (a person with whom Espinoza had a dating relationship), and dissuading Doe from reporting a crime. (Pen. Code, §§ 273.5, subd. (a), 136.1, subd. (b)(1).) At sentencing, the trial court reduced both counts to misdemeanors pursuant to section 17, subdivision (b) and sentenced Espinoza to 292 days in county jail, which was deemed served.

Espinoza argues the trial court erred when it denied his Batson/Wheeler motion. We affirm.

FACTUAL AND PROCEDURAL HISTORY

The police received a 911 call reporting a fight. When an officer arrived at the scene, he saw Espinoza throw Doe to the ground and kick him. The officer interviewed Doe, who said he was homeless and that Espinoza was his boyfriend.

During Doe’s interview, Espinoza began “threatening” Doe and said that if Doe “press[ed] charges he was going to get him.” Doe, who had been cooperating with the police interview, “shut down” after Espinoza’s threats.

Peremptory Challenge

During voir dire, prospective juror K.C. discussed her opinions on several relevant issues, including domestic violence in same-sex relationships, alcohol use, self-defense, and homelessness. K.C. described herself as a “woman of color” and recounted instances in which she felt “physically unsafe” because of racist and sexist remarks directed at her or the people around her. When asked if K.C. had a bad experience with transients, she said “no.” She said she “interact[s] with the homeless people around Santa Barbara” by chatting with them or buying them meals.

The prosecutor asked if K.C. had “any particularly strong feelings where you had great experiences with law enforcement or where you’ve had really bad experience[s] with law enforcement?” K.C. answered, “Nothing extreme, no, not in Santa Barbara.” She then recounted an instance in which a “police officer . . . forcibly made me stop talking to a homeless person once. That’s the only real interaction with police that stands out other than just kind of general interactions.” She said the incident happened in Santa Barbara.

K.C. said the incident did not affect her “ability to judge the credibility of the officers” in this case. She mentioned that she did not grow up in Santa Barbara and that she’s “only been here a couple years.” She explained, “That’s my only experience. I don’t think of that as being particularly representative of police officers.”

The prosecution used its first peremptory challenge to excuse K.C. The defense made a Batson/Wheeler motion. The proceedings were as follows:

[Defense]: . . . [K.C.] is the only [B]lack prospective juror in this entire panel. . . . [S]he mentioned that she would be able to . . . follow the law . . . which is the exact same response that [another juror said] . . . she told the Court that she could be fair, impartial. She had thoughtful, deliberate responses. She was open to the DA’s questions. She was open to my questioning.

[¶]

. . . [S]he was . . . the first peremptory that the DA used this morning when she had expressed that she could be fair and impartial and that she would follow the law in regards to even if she didn’t hear from the complaining witness.

And the appearance was that [Espinoza], who is also black, it’s the only juror in the panel that was excused and straight off the bat. . . .

[Court]: Thank you. . . .

. . . [¶] . . .

[Prosecutor]: So with regard to [K.C.], she was a lovely lady. She was very open to both of our questions. It had nothing to do with whether or not a complaining witness is going to testify.

But she—more so than any other, if the only person, had bad experiences with our local law enforcement, Santa Barbara PD presumably, . . . particularly when she said that she was pulled away and prevented from having a conversation with a homeless person here in Santa Barbara. While, you know, she mentioned that she doesn’t think that that’s going to have an effect on her, that was the predominant, if not only thing that the People considered when excusing her or asking the Court to do so.

[Court]: There were actually, I thought, three. I was just reviewing my notes yet again.

She indicated . . . that she does assist homeless on occasion, buys them food and whatever, I think there’s going to be a homelessness element to this case which could cause concern to one side or another, in this case, in this situation for prosecution.

She indicated that she had—she was working on her Ph.D., got her BA in Psychology and, of course, it’s already been announced that Ms. Mechanic is going to be the psychologist who is expected to testify. I suppose that could cause concern for the district attorney, depending on the DA.

And then lastly, indeed she did indicate that she’d had a bad—an unhappy or unpleasant experience with local law enforcement where she was trying to assist . . . a homeless person, maybe just converse with them and was not allowed to do so.

So the objection is noted and I think that the Court thinks there’s no basis for the objection by the defense.

DISCUSSION

Espinoza contends that his state and federal constitutional rights to a jury drawn from a representative cross-section of the community were violated when the trial court denied his Batson/Wheeler motion. (U.S. Const., 14th Amend.; Cal. Const., art. I, § 16.) We disagree.

The state and federal Constitutions prohibit the use of peremptory strikes to remove prospective jurors based on racial or gender bias. (Batson, supra, 476 U.S. at p. 89; Wheeler, supra, 22 Cal.3d at pp. 276-277.) The Batson/Wheeler inquiry consists of three stages. First, the opponent of the strike must make a prima facie case by showing the totality of the relevant facts raises an inference of discriminatory purpose in the exercise of a peremptory challenge. (People v. Scott (2015) 61 Cal.4th 363, 383 (Scott).) Second, the burden shifts to the proponent of the strike to explain the reason for excusing the juror by offering “permissible, nondiscriminatory justifications.” (Ibid.) Third, the trial court must decide whether the opponent of the strike has proved whether there was “purposeful discrimination.” (Ibid.)

“Review of a trial court’s denial of a Wheeler/Batson motion is deferential, examining only whether substantial evidence supports its conclusions. [Citation.] ‘We review a trial court’s determination regarding the sufficiency of a prosecutor’s justification for exercising peremptory challenges “‘with great restraint.’” [Citation.] We presume that a prosecutor uses peremptory challenges in a constitutional manner and give great deference to the trial court’s ability to distinguish bona fide reasons from sham excuses. [Citation.] So long as the trial court makes a sincere and reasoned effort to evaluate the nondiscriminatory justifications offered, its conclusions are entitled to deference on appeal. [Citation.]’ [Citation.]” (People v. Lenix (2008) 44 Cal.4th 602, 613-614 (Lenix).)

In Scott, our Supreme court held that where (1) a trial court determines no prima facie case of discrimination exists; (2) the court allows or invites the prosecutor to state his or her reasons for excusing the juror for the record; (3) the prosecutor provides a nondiscriminatory reason, and (4) the court determines that the prosecutor’s reason is genuine, an appellate court should begin its analysis of the trial court’s denial of the Batson/Wheeler motion with a review of the first-stage ruling. (Scott, supra, 61 Cal.4th at p. 391.) “If the appellate court agrees with the trial court’s first-stage ruling, the claim is resolved. If the appellate court disagrees, it can proceed directly to review of the third-stage ruling, aided by a full record of reasons and the trial court’s evaluation of their plausibility.” (Ibid.)

Here, unlike Scott, it is unclear whether the trial court made a first-stage ruling (whether a prima facie case of discrimination existed). The court allowed both parties to argue the motion before ruling that there was “no basis” for the defense’s Batson/Wheeler objection. It did not specify it was making a first-stage or third-stage ruling. But even if we assume the court found a prima facie case of discrimination, substantial evidence supports the court’s denial of the motion.

Substantial evidence supports the prosecutor’s nondiscriminatory justification. K.C. testified about an incident, in which a Santa Barbara police officer “forcibly” made her stop talking to a homeless person. Negative experiences with law enforcement are a valid basis for a peremptory challenge. (People v. Turner (1994) 8 Cal.4th 137, 171; see also People v. Gutierrez (2002) 28 Cal.4th 1083, 1125.) We defer to the trial court’s evaluation of the prosecutor’s proffered reason. (Lenix, supra, 44 Cal.4th at p. 614.)

Espinoza contends the trial court improperly “bolster[ed]” the prosecution’s explanation with other reasons (i.e., K.C.’s assistance to homeless people and her educational background in psychology). We need not resolve this contention, however, because even without the court’s consideration of these other reasons, we conclude that the only reason proffered by the prosecutor, i.e., K.C.’s negative experience with law enforcement, was itself sufficient to justify the strike.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED.

TANGEMAN, J.

We concur:

YEGAN, Acting P. J.

PERREN, J.

Thomas R. Adams, Judge

Superior Court County of Santa Barbara

______________________________

Wayne C. Tobin, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Michael C. Keller and Steven E. Mercer, Deputy Attorneys General, for Plaintiff and Respondent.