Opinion
A154377
05-28-2020
THE PEOPLE, Plaintiff and Respondent, v. ERIC B. JORDAN, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Francisco County Super. Ct. Nos. CT10027769, SCN221974-01)
A jury convicted Eric B. Jordan of multiple felonies after he broke into Dennis Dixon's home and shot and killed him. The trial court sentenced Jordan to life without the possibility of parole. Jordan appeals. He claims the prosecutor used peremptory challenges to remove Jewish jurors in violation of Batson/Wheeler. He also contends his prior prison enhancement must be stricken pursuant to Senate Bill No. 136 (2019-2020 Reg. Sess.).
People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler); Batson v. Kentucky (1986) 476 U.S. 79 (Batson).
We strike from Jordan's sentence the prior prison enhancement. As modified, we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
We recite only those facts necessary to resolve the issues on appeal. We mention Jordan's co-defendants, Gary D. Jones and Marlena E. Waters, only where necessary. Undesignated statutory references are to the Penal Code.
The prosecution charged Jordan with the following crimes arising out of Dixon's murder: murder during the commission of a robbery and a burglary with firearm enhancements (§§ 187, subd. (a)), 190.2, subds. (a)(17)(A), (a)(17)(G), 12022, subd. (a)(1), 12022.53 (b), (d) (count 1)); two counts of first degree residential robbery with firearm enhancements (§§ 211, 12022, subd. (a)(1), 12022.53, subds. (b), (d) (counts 2 and 3)); first degree residential burglary with firearm enhancements (§§ 459, 667.5 (c)(21), 12022, subd. (a)(1), 12022.5, subd. (a) (count 4)); and possessing a firearm while a felon (§ 12021, subd. (a)(1) (count 6)). The prosecution alleged Jordan had prior convictions (§§ 667, subd. (a)(1), (d)-(e), 1170.12, subd. (b)-(c)) and had served one prior prison term (§ 667.5, subd. (b)).
Prosecution Evidence
Dixon lived in an apartment in San Francisco with his son. The apartment was known as a "drug house." Police had executed search warrants at Dixon's apartment for suspected narcotics sales and found large amounts of cash. Dixon knew Jordan: they bought drugs from each other. Dixon was dating Waters. Unbeknownst to Dixon, Waters was also dating Jordan.
In August 2010, Dixon's relationship with Waters began to deteriorate. The following month, Jordan devised a plan to rob Dixon and communicated that plan to Waters and others. Jordan and Waters referred to themselves as the "new Bonnie and Clyde." Jordan picked up Waters at her house. They drank vodka, then picked up Jones. Jordan drove to San Francisco and parked near Dixon's apartment. He and Jones went to Dixon's apartment. Waters stayed in the car.
Dixon's son looked through the peephole in the front door and saw Jones. He opened the door and asked Jones what he wanted. Jones replied: " '[Y]ou know what this is,' " drew a revolver, and aimed it at Dixon's son. (Though the Dixons did not know it at the time, Jones's gun was unloaded.) Jones wedged his body in the doorway to prevent Dixon's son from closing the door.
At this point, Dixon was at the front door. He grabbed Jones's arm, raised it upward to prevent Jones from shooting, and pushed Jones outside. From the porch, Jordan fired a shot from a semi-automatic handgun. The bullet hit and killed Dixon. Jordan and Jones entered the apartment. Jones hit Dixon's son in the head with the revolver several times, drawing blood. The two men asked Dixon's son where " 'the money' " was, and they took him to Dixon's bedroom. "[M]ad," Jordan tried to duct tape Dixon's son's eyes and mouth, but was unsuccessful because Dixon's son was bleeding profusely. Then Jordan and Jones searched Dixon's bedroom. Jordan forced Dixon's son onto his stomach, while Jones took jewelry and money and jumped out the back window.
From the car, Waters called Jordan. She heard "scuffling" in the background. Jordan said he was "taking care of business." A neighbor heard Jordan announce himself at Dixon's door, and men arguing inside the apartment. Dixon said, " 'man you're going to do me like this?,' " followed by a gunshot. Someone said, " 'give it up, [n-word],' " and " 'Where is it?' "
The police arrived and found Dixon dead from a gunshot wound. They apprehended Jordan, who pretended "like he live[d] there" and said "someone tried to rob us." The police found the semiautomatic handgun and a corresponding shell casing. In the apartment, police found the unloaded revolver, duct tape, knives, and a hockey mask. In the backyard, officers found Jones hiding with cash, gloves, a ski mask, jewelry, cell phones, and a camera. He was unarmed.
Jury Selection
Defense counsel objected to the prosecution's discharge of "every Jewish person who came into [the jury] box." Defense counsel mentioned six prospective jurors: Elizabeth E., Aaron H., Carla F., Joseph S., Ann H., and Adam R. According to defense counsel, three prospective jurors—Elizabeth, Aaron, and Carla—mentioned ties to Judaism: Elizabeth mentioned her Jewish mother; Aaron said he volunteered at a Jewish center; and Carla disclosed being a rabbi. The other three prospective jurors—Joseph, Ann, and Adam—had surnames that appeared to be Jewish. Defense counsel claimed the prosecutor used six peremptory challenges to exclude people of "the Jewish persuasions."
The prosecutor denied systematically excluding "anyone, any group, particularly members of the Jewish faith." The court indicated it did not know how many of the six prospective jurors, aside from Carla, "were ethnically Jewish" and/or whether they practiced "the Jewish faith." Defense counsel suggested all six had "stereotypically" Jewish last names. In response, the court remarked, "I can't deal [in] stereotypes" and determined Jordan did not make a prima facie showing the prosecutor was "disqualifying individuals who were either ethnically Jewish or practice the Jewish religion." The court determined the burden did not shift to the prosecutor, and jury selection continued.
After the close of evidence, the prosecutor noted a Batson/Wheeler motion had been made, and that the court had concluded defense counsel had not made a "prima-facie level" showing. The prosecutor, however, requested an opportunity to create a record regarding his decision to challenge the six jurors, and the court obliged. The prosecutor began by noting he used 13 peremptory challenges, that Jordan is African American, and that the jury was comprised of "Caucasians and . . . Asian Americans." Then the prosecutor explained his reason for striking each prosecutive juror:
1. Elizabeth
Elizabeth is a teacher's consultant for special needs children. She worked with an organization that facilitated enrichment trips to Israel, and with Court Appointed Special Advocates, which helps "at risk youth." Elizabeth knew lawyers, judges, and law enforcement members. Elizabeth believed her "Jewish mother" would be interested in the trial but was certain she could refrain from discussing the case with anyone until it concluded.
The prosecutor challenged Elizabeth because she: (1) believed the juror's job is to " 'fight for the defendant' "; (2) was friends with a "very, very aggressive . . . drug defense lawyer" who authored "a book called Pot Shots that made light of law enforcement"; and (3) worked with "at-risk children" who had likely experienced "run-ins with law enforcement."
2. Aaron
While driving in Michigan, Aaron had been pulled over and asked to take a breathalyzer test. Aaron was under the legal limit and was let go without a citation; he believed the stop was pretextual. He followed the "general political" movement to decriminalize drugs. Aaron expressed concern about police misconduct and institutional racism; he had a "negative view" on current policing strategies. He had worked with, and donated to, the National Jewish Women's Council, which supports at-risk youth.
The prosecutor challenged Aaron because he expressed "an extreme point of view on expert witnesses"—he believed experts were "co-opted and would testify for whichever party called them." Aaron's opinion made the prosecutor uncomfortable because he intended to call several expert witnesses. Additionally, Aaron thought his traffic stop was pretextual and believed drug enforcement was "too aggressive" and was based "on racial profiling." These "anti-law enforcement . . . , anti-police" viewpoints made the prosecutor think Aaron would not "be a good juror" for the prosecution.
3. Carla
Carla is a rabbi; her husband is an ordained clergyperson. Carla's family members practiced criminal law. The prosecutor used a peremptory challenge on Carla because she was "ordained clergy" and clergy "always looks for the best in people. They believe in forgiveness, and redemption, and second chances." As a result, the prosecutor was uncomfortable having Carla on the jury.
4. Joseph
Joseph believed in "decriminalizing drugs" and had donated to an anti-gun violence organization, to the American Civil Liberties Union (ACLU), and to Amnesty International. The prosecutor dismissed Joseph because of his belief that it was "important to support the rights of those accused of crime" and organizations serving "those incorrectly convicted." According to the prosecutor, Joseph's beliefs demonstrated "a strong [level of] participation [in] liberal politics." Joseph's donations to organizations with an "anti-law enforcement bent" also made him unattractive as a juror, particularly because the prosecutor planned to have numerous police officers testify.
5. Ann
Ann is a teacher. Some of her students had criminal convictions. She donated to the ACLU and Southern Poverty Law Center; she also supported anti-gun groups. As a child, Ann had been the victim of a violent crime. She had "strong negative feelings about illegal drugs" and "complicated feelings about those who use and sell [them]."
The prosecutor challenged Ann because she donated to organizations with "anti-law enforcement" agendas, and to "anti-gun" groups. To the prosecutor, this illustrated "a level of participation in liberal politics that made [him] feel very uncomfortable," particularly given the number of police officers testifying at trial.
6. Adam
Adam donated to an organization with an anti-death penalty agenda. The prosecutor challenged Adam because he supported that organization, which "assists prisoners wrongfully convicted [and] confronts racial injustice." According to the prosecutor, "[i]n view of the law enforcement officers [who] were being called," he did not feel comfortable having Adam on the jury. Additionally, when asked about criminal trials he followed, Adam stated he was following the investigation into Donald Trump. Adam's level of "involvement in politics" made the prosecutor uncomfortable.
Defense counsel declined the court's invitation to respond to the prosecutor's explanation for excusing the jurors. The court determined the prosecutor exercised each peremptory challenge in a neutral manner, "having nothing to do with ethnicity, race, or religion."
Verdict and Sentence
In November 2017, the jury convicted Jordan of first degree premeditated murder during the commission of a robbery and a burglary while personally armed with a firearm (count 1); first degree residential robbery while armed with a firearm (count 2); attempted first degree robbery (lesser included offense of count 3); first degree residential burglary while armed with a firearm (count 4); and possessing a firearm while a felon (count 6). The jury found the firearm enhancement allegations true.
At a bench trial, the court found Jordan's prior conviction allegations true. In March 2018, the court sentenced Jordan to life without the possibility of parole on count 1, and imposed and stayed four consecutive terms of 25 years to life on counts 2, 3, 4, and 6. As relevant here, the court imposed a one-year enhancement for the prison prior (§ 667.5, subd. (b)) on count 1, and imposed and stayed a one-year prison prior enhancement on counts 2 and 3.
DISCUSSION
I.
Batson/Wheeler
A party may not use peremptory challenges to remove prospective jurors solely on the basis of group bias presumed from jurors' membership in an "identifiable group distinguished on racial, religious, ethnic, or similar grounds." (People v. Fuentes (1991) 54 Cal.3d 707, 713.) "Jews are a cognizable group for Wheeler purposes." (People v. Johnson (1989) 47 Cal.3d 1194, 1257 (dis. opn. of Mosk, J.), overruled on another point in People v. Gutierrez (2017) 2 Cal.5th 1150, 1174 (Gutierrez); see also In re Freeman (2006) 38 Cal.4th 630, 643.) The " 'defendant need not be a member of the group in question' " to raise a Batson/Wheeler claim. (People v. Catlin (2001) 26 Cal.4th 81, 116-117.) We assume for the sake of argument the excluded jurors were members of a cognizable group. (See Gutierrez, supra, at p. 1156, fn. 2 [surnames may identify members of a cognizable class for purposes of Batson/Wheeler motions].)
Claims that the prosecution impermissibly exercised a peremptory challenge based on group bias require a three-step analysis. (Gutierrez, supra, 2 Cal.5th at p. 1158.) First, the defendant must make "a prima facie case by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose." (Ibid.) If the defendant makes this showing, the burden shifts to the prosecution to provide " 'a "clear and reasonably specific" explanation of [the] "legitimate reasons" for exercising the challenges.' " (Ibid.) If the prosecution offers "a neutral explanation, the trial court must decide whether the [defendant] has proven purposeful discrimination." To prevail, the defendant "must show it was ' "more likely than not that the challenge was improperly motivated." ' " (Ibid.)
A. First Stage Review
At oral argument, Jordan acknowledged this case presents a first-stage review. We agree. The court denied the motion at the first stage, when it "determined no prima facie case had been established." (People v. Bryant (2019) 40 Cal.App.5th 525, 536, 539 (Bryant); People v. Scott (2015) 61 Cal.4th 363, 386 [clarifying procedure when court determines no prima facie case is established and then, having heard the proffered justifications, makes "an alternative holding that those reasons were genuine"], italics added.)
"At the first stage of the Batson/Wheeler inquiry, the trial court considers whether the 'totality of the relevant facts " 'gives rise to an inference of discriminatory purpose.' " ' [Citation.] Although the court considers the entirety of the record of voir dire at the time the motion is made, certain types of evidence may prove particularly relevant. 'Among these are that a party has struck most or all of the members of the identified group from the venire, that a party has used a disproportionate number of strikes against the group, that the party has failed to engage these jurors in more than desultory voir dire, that the defendant is a member of the identified group, and that the victim is a member of the group to which the majority of the remaining jurors belong. [Citation.] A court may also consider nondiscriminatory reasons for a peremptory challenge that are apparent from and "clearly established" in the record [citations] and that necessarily dispel any inference of bias.' " (Bryant, supra, 40 Cal.App.5th at p. 539.)
The record supports the trial court's conclusion that no inference of discrimination was raised, even if we assume the prosecutor struck most or all of the Jewish jurors from the venire. (People v. Rhoades (2019) 8 Cal.5th 393, 429-430.) Our review of the record shows no indication the prosecutor failed to " 'engage these jurors in more than desultory voir dire.' " (Bryant, supra, 40 Cal.App.5th at p. 539.) Additionally, Jordan is not a member of the identified group, and Dixon and his son are not members of the group to which the majority of the remaining jurors belong. (Ibid.; Rhoades, at p. 430.) Under the circumstances, Jordan's prima facie showing "was particularly weak as it consisted of little more than an assertion that a number of prospective jurors from a cognizable group had been excused." (People v. Panah (2005) 35 Cal.4th 395, 442.)
Additionally, and as discussed in more detail below, the record reveals facially nondiscriminatory reasons for excusing five of the six jurors, reasons " 'apparent from and "clearly established" in the record.' " (Bryant, supra, 40 Cal.App.5th at p. 540.) Elizabeth worked with at-risk children and was friends with an aggressive criminal defense attorney; Aaron had negative views about policing strategies, and expressed concerns about institutional racism and police misconduct; Joseph believed in decriminalizing drugs and supported civil liberties organizations. Ann had been a victim of violent crime, and had "negative" and "complicated" feelings about people who sell illegal drugs. Finally, Adam supported an organization with an anti-law enforcement agenda. These readily-apparent, nondiscriminatory reasons "dispel any inference of bias." (People v. Scott, supra, 61 Cal.4th at pp. 385-386; People v. Rhoades, supra, 8 Cal.5th at pp. 432-434; Bryant, at p. 540.)
B. Third Stage Review
Jordan's challenge also fails under a third-stage inquiry. (People v. Krebs (2019) 8 Cal.5th 265, 289-290.) At the third stage, we examine whether the court correctly determined Jordan failed to establish the prosecutor excused the prospective jurors due to intentional discrimination. "This portion of the Batson/Wheeler inquiry focuses on the subjective genuineness of the reason, not the objective reasonableness. [Citation.] At this third step, the credibility of the explanation becomes pertinent. To assess credibility, the court may consider, ' "among other factors, the prosecutor's demeanor; . . . how reasonable, or how improbable, the explanations are; and . . . whether the proffered rationale has some basis in accepted trial strategy." ' [Citations.] To satisfy [itself] that an explanation is genuine, the presiding judge must make 'a sincere and reasoned attempt' to evaluate the prosecutor's justification, with consideration of the circumstances of the case known at that time, [its] knowledge of trial techniques, and [its] observations of the prosecutor's examination of panelists and exercise of for-cause and peremptory challenges. [Citation.] Justifications that are 'implausible or fantastic . . . may (and probably will) be found to be pretexts for purposeful discrimination.' " (Gutierrez, supra, 2 Cal.5th at pp. 1158-1159.)
"We review a trial court's determination regarding the sufficiency of tendered justifications with ' "great restraint." ' [Citation.] We presume an advocate's use of peremptory challenges occurs in a constitutional manner," but defer to the trial court's conclusions only when it "made a 'sincere and reasoned effort to evaluate the nondiscriminatory justifications offered.' " We do not substitute our "own reasoning for the rationale given by the prosecutor, even if [we] can imagine a valid reason that would not be shown to be pretextual." (Gutierrez, supra, 2 Cal.5th at p. 1159.)
Here, substantial evidence supports the court's determination that the prosecutor's reasons for striking the jurors were nondiscriminatory. The prosecutor excused Elizabeth because she was friends with an aggressive criminal defense attorney who was critical of law enforcement, and because she worked with "at-risk children" who had likely experienced "run-ins with law enforcement." A belief that a juror may have a bias toward the defendant is a neutral explanation for excluding a juror. (People v. Stanley (2006) 39 Cal.4th 913, 939.)
The prosecutor excused Aaron because he held a negative view of law enforcement, based on his own personal experience, and because he expressed misgivings about police misconduct and institutional racism. These are neutral reasons for excluding a juror. (People v. Gutierrez (2002) 28 Cal.4th 1083, 1125 ["juror's negative experiences with law enforcement can serve as a valid basis for [a] peremptory challenge"].)
The prosecutor's nondiscriminatory reasons for dismissing Joseph, Ann, and Adam were also "plausible and supported." (People v. Krebs, supra, 8 Cal.5th at p. 291.) The prosecutor believed these jurors might have pro-defense leanings because they supported organizations with " 'anti-law enforcement agendas.' " "[A] prosecutor is entitled to believe that people . . . with particular philosophical leanings are ill-suited to serve as jurors because they are not sympathetic to the prosecutor." (People v. Arellano (2016) 245 Cal.App.4th 1139, 1165.) A prosecutor's genuine "subjective distrust of jurors affiliated with [certain] organizations . . . is sufficient to support the juror challenge." (People v. Jones (2013) 57 Cal.4th 899, 919.)
Substantial evidence supports the court's determination that the prosecutor's reason for excusing Carla was nondiscriminatory. The prosecutor excused Carla because he believed her profession—and the beliefs it engendered—rendered her unsuitable for jury service. This is a legitimate use of the peremptory challenge. (People v. Martin (1998) 64 Cal.App.4th 378, 381, 384-385; People v. Reynoso (2003) 31 Cal.4th 903, 924.)
Jordan's comparative juror analysis argument—made for the first time on appeal—does not undermine the substantial evidence supporting the court's conclusion that the prosecutor's reasons for excusing the jurors were nondiscriminatory. " 'When a defendant asks for comparative juror analysis for the first time on appeal, [our Supreme Court has] held that "such evidence will be considered in view of the deference accorded the trial court's ultimate finding of no discriminatory intent." ' " (Bryant, supra, 40 Cal.App.5th at p. 538, fn. 4.)
Jordan contends the prosecutor's reasons for excusing several of the jurors were pretextual because the prosecution did not excuse Juror Nos. 4325982 and 4372252, both of whom criticized the criminal justice system and/or supported organizations with anti-law enforcement agendas. "Having examined the record ourselves, we do not agree [these] jurors were comparable." (People v. Krebs, supra, 8 Cal.5th at p. 293.) Juror No. 4325982 believed society needed to rethink its approach to criminal justice, but he worked for a governmental agency where he evaluated complex data, a useful skill in a case like this one, where the prosecutor intended to rely on cell phone data and expert witness testimony. Juror No. 4372252 supported an unspecified group with an anti-law enforcement agenda, but her career as a nurse, collecting sexual assault evidence alongside law enforcement, made her a desirable juror because the prosecution intended to rely on forensic evidence. (People v. Lenix (2008) 44 Cal.4th 602, 622-623 [similar answer given by two panelists can be offset by other answers, attitudes, or experiences that make one juror more or less desirable].)
Jordan's use of comparative juror analysis does not establish the prosecutor's reasons for dismissing Aaron were pretextual. As the Attorney General persuasively argues in its respondent's brief, the seated jurors listed by Jordan were not " ' "materially similar in the respects significant to the prosecutor's stated basis for the challenge." ' " (Bryant, supra, 40 Cal.App.5th at p. 540.) In his reply brief, Jordan does "not respond to the Attorney General's . . . showing that the unexcused jurors" were either "comparable" to Aaron, or were "more favorable to the prosecution" than Aaron. (People v. Krebs, supra, 8 Cal.5th at p. 293.) Thus, we assume Jordan has conceded the issue.
II.
Senate Bill No. 136
When Jordan was sentenced, section 667.5, subdivision (b) required courts to impose a one-year sentence enhancement for each prior prison term suffered by a defendant. (People v. Lopez (2019) 42 Cal.App.5th 337, 340-341.) Senate Bill No. 136 became effective while this appeal was pending. It amended section 667.5 to provide that a prison prior enhancement applies only if a defendant served a prior prison term for a sexually violent offense as defined in Welfare and Institutions Code section 6600, subdivision (b). (Lopez, at pp. 340-341.) In supplemental briefing, the parties agree Senate Bill No. 136 applies to Jordan, and that his prior prison term was not for a sexually violent offense. We strike the section 667.5 enhancement attached to counts 1, 2, and 3. There is no need to remand for resentencing. (Lopez, at p. 342.)
DISPOSITION
We modify Jordan's sentence to strike the section 667.5, subdivision (b) enhancement attached to counts 1, 2, and 3. We direct the superior court to prepare and forward to the California Department of Corrections and Rehabilitation a new abstract of judgment reflecting this modification. As modified, the judgment is affirmed.
/s/_________
Jones, P. J. WE CONCUR: /s/_________
Needham, J. /s/_________
Burns, J.