Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Madera County. Edward P. Moffat, Judge, Super. Ct. No. MCRO19653B.
A. M. Weisman, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Kathleen A. McKenna and Connie Broussard Proctor, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Ardaiz, P.J.
Marcus Gene Jordan stands convicted, following a jury trial, of attempted premeditated murder (Pen. Code, §§ 187, subd. (a), 664, subd. (a); count 1), assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(1); count 2), and active participation in a criminal street gang (§ 186.22, subd. (a); count 3). As to counts 1 and 2, Jordan was further found to have committed the offense for the benefit of or in association with a criminal street gang (§ 186.22, subd. (b)(1)), and to have personally inflicted great bodily injury (§ 12022.7, subd. (a)) and great bodily injury with brain injury and paralysis (id., subd. (b)). His motion for a new trial was denied, and he was sentenced to a total unstayed term of life in prison with the possibility of parole plus five years. He now appeals, raising various claims of error. As we shall explain, we conclude the convictions must be reversed due to error during jury selection.
All statutory references are to the Penal Code.
Jordan was jointly charged with Jesse Joe Candia, Alfred Jose Arroyos, Enrique Antonio Vega, and Jose Albert Baca. Baca’s case was severed, and the remaining defendants were jointly tried. Only Jordan’s case is before us on this appeal.
Jordan’s sentence was ordered to run consecutively to the terms imposed in unrelated cases.
FACTS
I
PROSECUTION EVIDENCE
On August 31, 2004, Bruce Carroll was incarcerated at the Madera County Jail. That morning, he and another inmate were playing handball. Other inmates were also on the yard.
While Carroll was playing handball, Jordan, Candia, Vega, and a fourth individual came into the yard and went over to where Larry Santillanes was leaning up against the block wall in a relaxed position. The group appeared to be having a friendly conversation, but Jordan was pacing back and forth and looked like he was working himself into a frenzy. All of a sudden, he stopped and struck Santillanes in the jaw. Santillanes’s eyes kind of rolled back, and he appeared to be “out.” Then there was a “feeding frenzy,” in which the other three people started attacking him and bouncing his head off of the wall. Carroll estimated that between 10 and 15 blows were struck. All were directed at Santillanes’s head and face. When the assailants left the yard after perhaps 30 seconds, Santillanes “folded over” to the ground. About 45 or 50 seconds later, Jordan returned and kicked Santillanes three times in the head, “like he was a football.” Jordan then left the yard.
Arroyos, with whom Carroll was acquainted, was not one of the four.
Carroll and the other inmates stayed back, not wanting to be near Santillanes if the guards came out. However, they tried to coax Santillanes to his feet. It took him three or four minutes and six or seven attempts before he could get up. Santillanes then staggered off into the day room area. He had a potato-shaped bruise about the size of a grapefruit on the back of his head. Carroll, who returned to his handball game, subsequently heard that once back inside the module, Santillanes was struck again by Candia. Afterward, Jordan bragged that he had “jawed the dude,” meaning he had knocked him out.
Carroll did not speak to officers about what had happened until some four days later, when he talked to Corporal Sauceda and Sergeant Davis. Carroll named Jordan, Candia, Vega, and Baca as being involved; said that Jordan had kicked Santillanes, hard, in the head; and said that Jordan had separately assaulted Santillanes. Carroll said that Santillanes had been knocked out for about five minutes. On October 29, Carroll spoke to Officer Dilbeck and the prosecutor. He told Dilbeck that Arroyos was in the multipurpose room at the time of the attack and, to the best of his knowledge, had no involvement in the incident. Carroll also told Dilbeck it was common knowledge the Norteno gang had put a hit on Santillanes.
Betty Jo Turk, a nurse at the jail, performed a routine blood draw on Santillanes around 11:20 that morning. He seemed normal; she did not notice any injuries. She noted that he had a full head of hair.
Officer Lucas, who was the only correctional officer assigned to module D that morning, had just completed a security check of the module sometime after 11:00 a.m., when he saw Candia and Santillanes facing each other inside the module, having words. Although their arms were down by their sides, they looked like they were about to fight. Lucas yelled at them to break it up and started walking toward them. When he told them to “go lockdown” a second time, Candia started toward his cell, but Santillanes continued to stand where he was until Lucas walked over and physically turned him around and escorted him to his cell. Lucas asked what the problem was between him and Candia, but Santillanes said he did not know what Lucas was talking about and did not want to talk to Lucas. The only injury Lucas noticed was a small lump on Santillanes’s right eyebrow. Although Santillanes was walking directly in front of Lucas and his hair was short enough that the scalp was visible, Lucas did not notice any kind of injury to the back of his head. Santillanes appeared oriented to time and space, and answered Lucas’s questions appropriately.
Lucas did not recall Carroll being on the yard on the date in question.
Lucas locked Santillanes in his cell. Some 10 to 15 minutes later, around 11:25 or 11:30 a.m., he was advised by Corporal Followill to send Santillanes to Intake, as he was scheduled to be released. Lucas informed Followill of the conflict between Santillanes and Candia. Santillanes still appeared alert and oriented.
Around 11:45 that morning, Sergeant Davis was on her way to Intake when she saw Santillanes walking toward the area. He did not respond the first time she called to him. When she spoke to him a second time, he turned and looked at her, and she saw that he had a swollen right eye and a lump above and behind the right ear. He seemed dazed and did not respond other than to look at her, so she advised Corporal Followill, the on-duty watch commander, of her concern Santillanes may have been assaulted.
Followill noticed a cut over Santillanes’s right eye. He put Santillanes in a cell and asked him where he had been hit. Santillanes responded, “‘Just in the head I think.’” He seemed coherent. Santillanes’s eye was beginning to swell as they were talking.
Followill contacted the medical staff. When Nurse Turk arrived, she noticed Santillanes had shaved his head and had a very large black eye. Wilma Chapman, a licensed vocational nurse who assisted in treating Santillanes, noticed bruising on his head and face. She asked Candia, who had been brought to a nearby holding cell, if he had seen Santillanes fall and hit anything. Candia replied that he did not see Santillanes fall, that he had stayed on his feet, and that he (Candia) had only hit him once in the back of the head.
The medical staff began triaging Santillanes. In addition to his left eye, he had a large bruise increasing in size on the right parietal area of his head, above and to the rear of his ear. It was mushy, indicating a probable fracture underneath. He also had some abrasions on his back, red marks on his upper torso, and his right eye began to discolor as he was being treated. At first, Santillanes was completely amenable to the medical staff’s requests. When Nurse Alexander asked what had happened to him, he responded that he had been involved in a fight. Within a few minutes, however, his condition began to deteriorate. He started becoming disoriented and irritable. Over a period of 10 to 15 minutes, he went from being responsive to not being able to speak at all. An ambulance was summoned, and Santillanes was turned over to paramedics at approximately 12:12 p.m. By this time, he was in critical condition. Both eyes had become red and swollen. At some point, he had started to convulse. His nose had been bleeding, and the injury to the parietal region of his head continued to increase in size. He was unable to speak or respond to questions, or to make voluntary movements when requested.
Dr. Davis, the Chief of Trauma Surgery at University Medical Center, treated Santillanes at the hospital. Santillanes was in a coma when he arrived. He had some abrasions on his head and bilateral black eyes, which are a sign of a skull fracture. A CT scan of the head showed a large blood clot on his brain in the right parietal region. This was a life-threatening injury and necessitated emergency surgery. A neurosurgeon performed a craniotomy to remove the blood clot and lessen the pressure on the brain, after which Santillanes remained in the Intensive Care Unit for a significant period. Davis expected him to die. Ultimately, Santillanes was in the hospital for approximately 57 days. Eventually, he slowly came out of the coma, but was left with severe cognitive defects and will always need someone to care for him.
Based on his training and experience, Davis concluded the cause of the injury was blunt trauma. If several individuals struck blows in and around Santillanes’s head, it would not be possible to tell which blow caused the injuries. In Davis’s opinion, it was “extremely unlikely” that only a single blow was struck, as it took a significant amount of force to create an injury of this magnitude. A very powerful person, kicking with a very powerful leg, perhaps could have done so. Santillanes could not have received this type of injury by accident.
All inmate telephone calls at the jail are monitored and recorded. On September 1, 2004, Jordan telephoned his wife or girlfriend. In part, he asked whether she remembered that he had told her he had to do something. When she asked whether he did it, he replied, “Hey, I knocked him smooth out, Ma!” He went on to relate that he was not on lockdown, and that “Dude had to get picked up by the hospital” and “[g]ot brain damage .…” Later that day, Arroyos telephoned an unidentified female. He advised her that he was on lockdown again because “me and Marcus put this dude into a coma.” He went on to relate that the person “walked up and we went and said, ‘Hey let us talk to you in the yard.’ And he’s all, ‘Allright.’ He’s an OG right. He went out there and, ‘Boom, Wah, Pow!’ Okay and he came in with both eyes shut and he walked up to the CO and, boom, fell. It was crazy.”
The Santillanes assault was the only one resulting in a coma around that date.
Tape recordings of both telephone calls were played for the jury.
Gang expert Jason Dilbeck, the gang liaison officer for the Madera Police Department, explained that the Norteno and Sureno gangs are the predominant criminal street gangs in Madera County. The primary activities of the Norteno criminal street gang are violent assaults, assaults with deadly weapons, drive-by shootings, shootings at inhabited dwellings, attempted murders, homicides, narcotics sales, burglaries, and armed robberies. Based on various sources of information, Dilbeck opined that Jordan, Vega, and Arroyos were Norteno gang members, while Candia was a Norteno associate, and that all were active participants in a criminal street gang.
Dilbeck explained that the Nortenos answer to prison gang members. The first tier of the Norteno-affiliated prison gangs is the Nuestra Raza, while the highest tier is the Nuestra Familia. “Red light, green light” refers to a hit. If a Norteno is on a green light list, any other Norteno who has contact with him is supposed to try to kill him or to do whatever he can against that person. A red light means someone may have problems with the gang, but is not to be harmed – at least for the time being – because he is in the process of rectifying the problem or doing something that benefits the gang.
Bruce Carroll and a confidential informant both told Dilbeck that “Joker from max” – the maximum security wing – ordered a hit on Santillanes. The only “Joker” so incarcerated was Juan Herrera, a member of the Nuestra Raza prison gang. Dilbeck obtained information that Herrera was “running the max” and sending orders to module D, where the assault on Santillanes took place, and that the orders to put a hit on Santillanes were directed by Herrera. Apparently, Santillanes, who had a history of being in a sensitive needs yard in prison, had dropped out of the gang and refused to “pay taxes” to the gang on his narcotics earnings. His trouble also involved a woman named Rita Nieto.
Based on his information, Dilbeck opined that Jordan, Candia, Vega, and Arroyos acted in concert to commit a crime to benefit, further, and assist the gang; and that the assault was done in association with, and at the direction of, the Norteno criminal street gang. Dilbeck noted that multiple members of the same gang were involved in the same criminal activity. Moreover, Jordan was already possibly facing prison time. If, when he got to prison, it was discovered he did not act on the green light on Santillanes, he could face reprisals. In addition, he bragged about the assault; by acting on a green light, an individual receives a boost to his reputation, and the gang gets a boost to its notoriety. Candia was overheard talking to Baca, one of the other individuals involved in the assault, and asking how he could clean something up. He was told that if he committed this assault, it would help him with some “smut he had on his jacket,” meaning some sort of transgression. In 1995, Candia “broke the rules” by cooperating with law enforcement and testifying in a homicide case. Doing something to benefit the gang, such as acting on a green light, would greatly benefit him if and when he went to prison.
II
We combine the evidence presented by the various defendants.
Marco Neely was housed in module D on August 31, 2004. He and Jordan were together between 11:00 a.m. and 12:00 p.m. on that date, reading magazines. Arroyos and another inmate were also present. About 10 or 15 minutes after they sat down, Neely saw Santillanes walk into the module from the yard with bruises and marks on his face. Although Neely did not witness any altercation, he found out about it the same day. To his knowledge, Jordan was not involved. While Neely learned a few days later that Jordan was implicated in events, he did not tell correctional officers or anyone that Jordan had been with him, reading a magazine, during the assault.
Defense investigator Robert Gonzalez interviewed Bruce Carroll on January 5, 2005. When told that Gonzalez worked for Baca’s attorney and wanted to talk about an alleged fight Carroll might have seen at the Madera County Jail, Carroll replied that he had selective memory and would testify that he did not see anything.
Candia testified that on August 31, 2004, he was incarcerated in the Madera County Jail. At approximately 10:00 that morning, he was informed he had a visitor. When he returned from his visit at around 10:20 a.m., he saw Santillanes sitting in front of the television. Santillanes, who had introduced himself to Candia several days earlier, stopped Candia and said he wanted to talk to him about something. First, Candia went to his cell, changed out of the shirt he had worn for the visit, and did a few things. Around 10:40, he saw Santillanes again and asked what he wanted to talk to him about. Santillanes suggested they go outside. There were several people out on the yard, but no one was playing handball.
Once outside, Santillanes accused Candia of trying to go out with his woman and giving her drugs. Candia denied the accusations, but Santillanes would not believe him. As Candia was walking away, Santillanes struck him in the head. Shocked, Candia turned around to find Santillanes still swinging at him. Candia was struck perhaps three times before he started to hit back. He struck Santillanes twice, but Santillanes came at him again and threw another punch. Candia struck Santillanes two or three times in the facial area and “rocked him.” Santillanes “kind of went out a little bit” and then buckled and went down, first to his knees and then all the way to the ground. He did not hit the back of his head. Candia did not kick Santillanes at any time. None of the other defendants or Bruce Carroll were present during the altercation.
Candia returned to the day room. He could see Santillanes pacing around in the yard, then he also came inside. When he came toward Candia, Candia immediately got up. Santillanes struck him again, and Candia hit him back. At that point, Officer Lucas told them to knock it off and lock it down. Candia went to his cell, while Lucas escorted Santillanes. This was a little before 11:00 a.m. At about 11:25, Officer Martinez came and escorted Candia to Intake. Approximately 10 to 15 minutes later, Candia saw Nurse Chapman and an Oriental nurse walk by his cell. They stopped next door and one of them yelled to an officer to open the door, because Santillanes was banging his head against the wall. At no time while he was in Intake did Candia tell anyone that he had hit Santillanes or that they had had a fight.
Nurse Alexander set the work schedule for nurses at the jail. According to her, two nurses of Asian descent worked for the jail’s health care provider on the date in question. Neither was on duty between 8:00 a.m. and 2:00 p.m. that day.
DISCUSSION
I
BATSON-WHEELER CLAIM
Jordan challenges the trial court’s denial of the defense’s Batson-Wheeler motion, which was aimed at the prosecutor’s peremptory excusals of several prospective jurors who were Hispanic. Hispanics are a cognizable group for purposes of Batson-Wheeler analysis. (People v. Trevino (1985) 39 Cal.3d 667, 686, disapproved on other grounds in People v. Johnson (1989) 47 Cal.3d 1194, 1221.) Although Jordan is African-American, a defendant and prospective jurors alleged to have been wrongly excused need not be members of the same race in order for the defendant to complain. (Powers v. Ohio (1991) 499 U.S. 400, 416.)
Batson v. Kentucky (1986) 476 U.S. 79 (Batson); People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler).
The motion initially was made by Jordan. Although certain of the other defendants expressly joined only as to particular prospective jurors, the trial court treated the motion as fully applying to all defendants. We do likewise. (See People v. Bonilla (2007) 41 Cal.4th 313, 345; People v. Avila (2006) 38 Cal.4th 491, 543.)
“The purpose of peremptory challenges is to allow a party to exclude prospective jurors who the party believes may be consciously or unconsciously biased against him or her. [Citation.]” (People v. Jackson (1992) 10 Cal.App.4th 13, 17-18.) Peremptory challenges may properly be used to remove jurors believed to entertain specific bias, i.e., bias regarding the particular case on trial or the parties or witnesses thereto. (Wheeler, supra, 22 Cal.3d at p. 274.) However, “‘[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.]” (People v. Bell (2007) 40 Cal.4th 582, 596; see Batson, supra, 476 U.S. at pp. 88-89; Wheeler, supra, 22 Cal.3d at pp. 276-277.)
“The United States Supreme Court has recently reaffirmed that Batson states the procedure and standard to be used by trial courts when motions challenging peremptory strikes are made. ‘First, the defendant must make out a prima facie case “by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose.” [Citations.] 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. Avila, supra, 38 Cal.4th at p. 541, quoting Johnson v. California (2005) 545 U.S. 162, 168 (Johnson).) The California Supreme Court has “endorsed the same three-part structure of proof for state constitutional claims. [Citations.]” (People v. Bell, supra, 40 Cal.4th at p. 596; Wheeler, supra, 22 Cal.3d at pp. 280-282.)
With these principles in mind, we turn to the facts of the case before us.
A. Factual Background
J.C. was one of the first 14 prospective jurors examined during voir dire. He related in part that he ran a mill; was married to a medical biller; had lived in Madera County for 19 years; and had no prior jury experience. J.C. further related that his uncle had been caught with drugs about six years before, but that this would not affect his ability to be fair and impartial. When one of the defense attorneys asked how he would feel about the credibility of a prosecution witness who was in trouble with the law, J.C. replied, “I would – that that would be real hard to judge him because, you know, he’s in trouble with the law.” Under questioning by the prosecutor, J.C. clarified that it was his wife’s uncle who had been caught with drugs, but that, even though the man was prosecuted by a representative of the Madera County District Attorney’s Office, it did not have an impact on J.C., who had no bad feelings about how he was treated. The prosecutor subsequently excused J.C.
The reporter’s transcript ascribes this response to the prospective juror in seat No. eight. Since that prospective juror had just answered the same question and defense counsel then specifically addressed J.C., we are satisfied the quoted answer was given by J.C.
C.S. was later called to the box. She related that she knew the woman with whom one of the defendants was involved, but that it would not affect her ability to be fair and impartial. With respect to her background, she related in part that she was the head cook for Head Start; had lived in Madera County for 40 years; and had no prior jury experience. Under questioning by the prosecutor, C.S. related that the woman involved with one of the defendants had worked with her at Head Start about a month earlier. She agreed with the prosecutor’s assessment that the person was simply a former coworker. The prosecutor subsequently excused C.S.
R.N. was called to the box on the second day of jury selection. She related in part that she was employed in outside sales for GMC; was unmarried; had lived in Madera County for four years; had no prior jury experience; and had a cousin who was a correctional officer, although that would not affect her ability to be fair and impartial in this case. R.N. also related that, although she had not had any problem with gang members, “[f]riends of friends” of hers had problems. Under questioning by the prosecutor, R.N. explained that she and the gang members had the same friends and that her friends still dealt with these people, but that she herself had not done so for a year to a year and a half. R.N. related that she and her friends were raised together, and she began noticing the friends were associating with gang members when she first heard about gangs, when she was around 14. If she went to a friend’s house and a gang member was also visiting there, R.N. would sometimes spend time and do things with both of them. This happened until the time she was around 18 or 19, although she tried to limit her exposure. She had a job and the people in question did not, so they grew apart. After passing the challenge several times, the prosecutor excused R.N.
M.D. was subsequently called to the box. She related that she was a winery worker; was married; had children, one of whom was no longer at home; had lived in Madera County for approximately 33 years; had prior jury experience in a criminal case; and had a brother-in-law who was a correctional officer at Corcoran prison and a sister who worked at a juvenile boot camp, although this would not affect her ability to be fair and impartial in this case. M.D. related that a distant cousin had children in gangs, but that she did not really talk to them. Under questioning by one of the defense attorneys, M.D. stated she was a forklift driver, and agreed with counsel’s statement that sitting on a jury would be kind of a vacation for her. When he asked whether she was anxious to serve or whether serving would be kind of fun for her, she stated that it did not matter. The prosecutor asked only two questions, both of which concerned M.D.’s attitude toward inmate witnesses. M.D. agreed that she could treat such a person as she did anyone else. After passing the challenge once with M.D. in the box and exercising two peremptory challenges, the prosecutor excused her.
E.P. was called to the box on the third day of jury selection. She related that she worked in a hospital admission department; was married, with children younger than school age; had no prior jury experience; had lived in Madera for 24 years; and had had no dealings with, problems with, or known any, people she thought were gang members. Under questioning by the prosecutor, she clarified that her job involved seeing people who were to be admitted to the hospital, but not working with the emergency room, and that, although she did not know any gang members, she was aware of gangs in Madera. The prosecutor used his next peremptory challenge to excuse E.P.
After the next prospective juror was questioned, all parties passed the challenge. Before the jury was sworn, however, counsel for Jordan made a Wheeler motion, arguing that the prosecutor had excused the only three prospective Hispanic jurors. The court observed that the prosecutor had used his first peremptory challenge against J.C., his 12th challenge against R.N., his 15th challenge against M.D., and his 19th challenge against E.P., and that all four had Hispanic names. The court found a prima facie showing and asked the prosecutor to explain the challenges. This ensued:
Citation to Wheeler is sufficient to preserve claims under Batson. (People v. Gray (2005) 37 Cal.4th 168, 184, fn. 2; People v. Yeoman (2003) 31 Cal.4th 93, 117-118.)
The court did not mention C.S., who, by our count, was excused with the prosecutor’s fourth peremptory challenge.
“MR. RUTIAGA [prosecutor]: As far as [J.C.], his uncle was caught with drugs and I have a note, hard to judge inmates.… That was the reason he was removed.
“[M.D.] I recall the make up at that time was about 10 women and two males. In order to change the make up and dynamic of the group, I didn’t want to have all 10 or 11 women and one man. And in addition I believe she worked at the winery.
“THE COURT: [M.D.], yeah, she did.
“MR. RUTIAGA: Yeah. I can’t recall any other specific reasons. [¶] The third one.
“THE COURT: The third one was, which was really the second one, was [R.N.] [¶] … [¶]
“MR. RUTIAGA: Yeah. She was the individual who had in the people that she associated with that were gang members. She was rather youthful. Although she said she would keep away from them, I was concerned with her age and associating with gang members that she could potentially be sympathetic towards the defense. Youthfulness and the gang, being acquaintances with gang members was a concern.
“THE COURT: Okay. And then the fourth one, [E.P.] [¶] … [¶]
“MR. RUTIAGA: Again, youthful age. She said she had been in the area for 24 years, had been involved in hospitals. She didn’t have any jury experience.… I can’t think of anything else. [¶] And in addition that there are two individuals that are of Hispanic descent that weren’t – that are made up on the panel as it exists right now.”
The court then solicited comments from the defense. With respect to M.D. and the prosecutor’s indication that he did not feel comfortable having a jury that was not more balanced in terms of males and females, Candia’s counsel remarked, “Which made me wonder, well, then why did he pick [M.D.]?” Arroyos’s attorney noted that there were 10 women, and the prosecutor picked the lone Hispanic one to excuse. Vega’s attorney acknowledged that seeking balance in a jury was important, but noted that other people could have been excused. She also expressed concern about E.P., arguing that the fact she had been in the area for 24 years did not mean she was 24 years old, and that youthfulness was not a reason to excuse her. Arroyos’s attorney observed that E.P. had looked to him to be 30-plus years old. The prosecutor responded that, with respect to M.D., the nature of her work at the winery was a concern compared to the other individuals. He concluded, “Ms. ****73141 [a seated juror] is Hispanic descent also. She wasn’t chosen. I just chose one of the individuals.”
The court ruled as follows:
“The court’s going to find … that the exclusion of [J.C.] wasn’t for race or status. The fact she’s [sic] Hispanic and the reasons indicated by Mr. Rutiaga are sufficient to justify the use of a peremptory on [J.C.]
“As to [R.N.], again, the explanation offered by Mr. Rutiaga as to excluding her based on the youthfulness and knowing gang members and associating with them is sufficient and legal cause.
“As to [E.P.], excluding her based on lack of jury experience and youthful is a sufficient excuse to warrant exclusion and he’s met his burden in relationship to that as well as … to [J.C.] and [R.N.]
“As to [M.D.], explanation about excluding her because he wanted a better balance of jurors on there and even though there were a number of other women on there, there was also another Hispanic woman on the panel at the time, Miss ****73141, and his reasons based on her job situation and the need for a better balanced jury is sufficient.
“He’s met his burden in relationship to [M.D.] as well.
“So the Wheeler slash Batson motion is denied.”
B. Analysis
The trial court ruled for the defense in step one of the Batson-Wheeler analysis by finding a prima facie case of improper discrimination. We assume substantial evidence supports that determination. (See People v. Silva (2001) 25 Cal.4th 345, 384; People v. Alvarez (1996) 14 Cal.4th 155, 197.) Accordingly, we move to step two.
At step two, the prosecutor must come forward with a race-neutral explanation. (People v. Silva, supra, 25 Cal.4th at p. 384.) “In evaluating the race neutrality of an attorney’s explanation, a court must determine whether, assuming the proffered reasons for the peremptory challenges are true, the challenges violate the Equal Protection Clause as a matter of law.… [¶] A neutral explanation in the context of our analysis here means an explanation based on something other than the race of the juror. At this step of the inquiry, the issue is the facial validity of the prosecutor’s explanation. Unless a discriminatory intent is inherent in the prosecutor’s explanation, the reason offered will be deemed race neutral.” (Hernandez v. New York (1991) 500 U.S. 352, 359-360 (plur. opn. of Kennedy, J.).) At this step, the explanation need not be persuasive, or even plausible. (Purkett v. Elem (1995) 514 U.S. 765, 767-768.)
The prosecutor stated race-neutral reasons with respect to J.C. (uncle caught with drugs; hard to judge inmates), R.N. (youthful; acquainted with gang members), and E.P. (youthful; involved in hospital; no prior jury experience). His reasons with respect to M.D., while facially race-neutral, present a much more difficult question.
During the hearing on the motion, no defendant mentioned C.S. or protested when the trial court omitted her from its recitation of the prospective Hispanic jurors whom the prosecutor had excused and when having the prosecutor state his reasons. Under the circumstances, any claim of error with respect to C.S. has been forfeited. (See People v. Lancaster (2007) 41 Cal.4th 50, 74, fn. 9; compare People v. Phillips (2007) 147 Cal.App.4th 810, 814.) In any event, a race-neutral reason is readily apparent from the record: she was acquainted with a woman with whom one of the defendants was involved.
The prosecutor explained that he struck M.D. because there were approximately 10 women and 2 men on the panel, and he did not want 10 or 11 women and one man. Although cases addressing Batson-Wheeler claims typically do so in the context of alleged racial discrimination in the exercise of peremptory challenges, “[b]oth the state and federal Constitutions prohibit the use of peremptory challenges to exclude prospective jurors based on race or gender. [Citations.]” (People v. Bonilla, supra, 41 Cal.4th at p. 341, italics added; see J.E.B. v. Alabama ex rel. T.B. (1994) 511 U.S. 127, 129, 130-131.) The question is whether excusing a prospective juror in an attempt to alter the gender dynamic or balance of the jury constitutes unconstitutional exclusion based on gender.
We have been unable to find any California case that directly discusses a situation in which a prosecutor responds to allegations he or she improperly removed a prospective juror due to membership in one cognizable group, by stating that in reality, he or she removed the prospective juror due to membership in a different cognizable group. In U.S. v. DeGross (9th Cir. 1992) 960 F.2d 1433 (DeGross), a federal prosecution originating in California, however, the prosecutor challenged the defendant’s peremptory striking of seven male prospective jurors, while the defendant objected to the prosecutor’s peremptory challenge of a Hispanic woman, Tellez, who was the lone Hispanic on the venire. The trial judge found that each party had established a prima facie case of purposeful discrimination, and required them to justify their challenges. Insofar as is pertinent, the prosecutor responded that his main reason for challenging Tellez was to achieve “‘a more representative community of men and women on the jury.’” At that time, 10 women and 2 men were seated in the jury box. The trial court accepted the explanation and struck Tellez. The impaneled jury was made up of three men and nine women. (Id. at pp. 1435-1436 & fn. 3.)
In People v. Ortega (1984) 156 Cal.App.3d 63, we held that a Wheeler motion made after the jury was sworn was untimely. (Ortega, at p. 70.) In dictum, we concluded the prosecutor had rebutted the allegation that he systematically excluded Hispanics from the jury. One of the reasons for our conclusion was that the prosecutor wanted a balanced jury and excused three prospective jurors not because they were Hispanic, but because, at least in party, they were women. (Id. at pp. 70-72.) We did not discuss the validity of gender-based excusals. It is axiomatic that “cases are not authority for propositions not considered. [Citations.]” (People v. Alvarez (2002) 27 Cal.4th 1161, 1176.)
The impaneled jury in the present case likewise consisted of nine women and three men.
The appellate court first determined that the prosecution had standing to object to a defendant’s peremptory challenge, that equal protection principles prohibited the striking of prospective jurors on the basis of their gender, and that said principles applied equally to prosecutors and defendants. (DeGross, supra, 960 F.2d at pp. 1437, 1439-1440.) Turning to the prosecutor’s challenge of Tellez, the court noted that the trial judge had found a prima facie case of race discrimination. The prosecutor’s explanation, however, established a prima facie case of gender discrimination. It also constituted an admission of purposeful gender discrimination that violated the defendant’s equal protection rights. Accordingly, the trial judge erred by accepting the explanation and striking Tellez from the jury. (Id. at pp. 1442-1443.) As a result, the appellate court reversed the defendant’s conviction without determining whether the trial judge’s finding of a prima facie case of race discrimination was proper. (Id. at p. 1443 & fn. 15.) The court observed: “We sympathize with the prosecutor’s predicament in this case. Faced with a female defendant who was systematically excluding males from the jury, the prosecutor made an understandable effort to balance the gender composition of the jury. However, …, we cannot find that the prosecutor’s admission constituted a neutral explanation.…” (Id. at p. 1443, fn. 14.)
In the present case, the defendants did not challenge the prosecutor’s explanation for striking M.D. on the basis of gender discrimination. Indeed, Vega’s attorney agreed that seeking balance in a jury was important. There is no indication in DeGross that the defendant raised a gender-discrimination objection to the prosecutor’s stated reason for striking Tellez, and, although we have found California cases prohibiting a defendant from claiming improper use of peremptory challenges on appeal without having made a timely Batson-Wheeler motion in the trial court (see, e.g., People v. Hayes (1990) 52 Cal.3d 577, 604), those cases concern the need for an initial objection and do not address whether a further objection is required once the prosecutor has stated his or her reasons. We need not determine the effect of the lack of a gender-discrimination-based objection, however, because the trial court erred by accepting the prosecutor’s reasons with respect to M.D. in any event.
At step three of the Batson-Wheeler analysis, the trial court must decide whether the opponent of the peremptory strike has proved purposeful racial discrimination by a preponderance of the evidence. (Purkett v. Elem, supra, 514 U.S. at p. 767; People v. Hutchins (2007) 147 Cal.App.4th 992, 997-998.) At this point, the persuasiveness of the proffered justification becomes relevant (Johnson, supra, 545 U.S. at p. 171), as implausible or fantastic justifications will often be found to be pretexts for purposeful discrimination (Purkett v. Elem, supra, 514 U.S. at p. 768). However, a prosecutor is presumed to use his or her peremptory challenges in a constitutional manner (People v. Alvarez, supra, 14 Cal.4th at p. 193; Wheeler, supra, 22 Cal.3d at p. 278), and the justification proffered for the particular excusal “need not support a challenge for cause, and even a ‘trivial’ reason, if genuine and neutral, will suffice. [Citation.]” (People v. Arias (1996) 13 Cal.4th 92, 136.) “What is required are reasonably specific and neutral explanations that are related to the particular case being tried.” (People v. Johnson, supra, 47 Cal.3d at p. 1218.) “All that matters is that the prosecutor’s reason for exercising the peremptory challenge is sincere and legitimate, legitimate in the sense of being nondiscriminatory. ‘[A] “legitimate reason” is not a reason that makes sense, but a reason that does not deny equal protection. [Citations.]’ [Citation.]” (People v. Reynoso (2003) 31 Cal.4th 903, 924, quoting Purkett v. Elem, supra, 514 U.S. at p. 769.)
Once the prosecutor “come[s] forward with an explanation that demonstrates a neutral explanation related to the particular case tried” (People v. Johnson, supra, 47 Cal.3d at p. 1216), the trial court must then satisfy itself that the explanation is genuine (People v. Hall (1983) 35 Cal.3d 161, 167). “In [this] process, the trial court must determine not only that a valid reason existed but also that the reason actually prompted the prosecutor’s exercise of the particular peremptory challenge.” (People v. Fuentes (1991) 54 Cal.3d 707, 720.) “This demands of the trial judge a sincere and reasoned attempt to evaluate the prosecutor’s explanation in light of the circumstances of the case as then known, his knowledge of trial techniques, and his observations of the manner in which the prosecutor has examined members of the venire and has exercised challenges for cause or peremptorily, for ‘we rely on the good judgment of the trial courts to distinguish bona fide reasons for such peremptories from sham excuses belatedly contrived to avoid admitting acts of group discrimination.’ [Citation.]” (People v. Hall, supra, 35 Cal.3d at pp. 167-168.) “When a trial court has made a sincere and reasoned effort to evaluate each of the stated reasons for a challenge to a particular juror, we accord great deference to its ruling, reviewing it under the substantial evidence standard. [Citations.]” (People v. Jurado (2006) 38 Cal.4th 72, 104-105.) Deference does not, of course, “imply abandonment or abdication of judicial review.” (Miller-El v. Cockrell (2003) 537 U.S. 322, 340.)
Substantial evidence supports the trial court’s rulings with respect to J.C. and R.N. The prosecutor’s stated reasons for excusing J.C. – that his uncle had been caught with drugs and he found it hard to judge inmates – were both inherently plausible (the latter especially so in light of the fact one of the main prosecution witnesses was an inmate) and supported by the record. (See People v. Panah (2005) 35 Cal.4th 395, 442; People v. Silva, supra, 25 Cal.4th at p. 386.) The fact it was the uncle of J.C.’s wife who was caught with drugs, and J.C. actually said it would be hard to judge someone who was in trouble with the law, does not change this conclusion. As to R.N., the prosecutor expressed concern that, given her age and past association with gang members, she potentially could be sympathetic toward the defense. Given the gang allegations in this case, these reasons were also inherently plausible and supported by the record.
The prosecutor’s stated reasons for excusing M.D. stand in stark contrast. “[T]he prosecutor may excuse prospective jurors, including members of cognizable groups, based on personal, individual biases those individuals actually express … even if the biased view or attitude may be more widely held inside the cognizable group than outside of it.” (People v. Lewis and Oliver (2006) 39 Cal.4th 970, 1016.) The prosecutor did not refer to any individual bias actually expressed by M.D., or to anything in her background or her responses during voir dire that caused him concern about her personally. Even assuming the overall gender composition of a jury is a legitimate, nondiscriminatory concern, the prosecutor’s stated desire to change the makeup and dynamic of the group applied equally to the women he did not challenge. The only characteristic truly distinguishing M.D. from eight of the nine other female prospective jurors was the fact M.D. was Hispanic. “A prosecutor’s motives may be revealed as pretextual where a given explanation is equally applicable to a juror of a different race who was not stricken by the exercise of a peremptory challenge. [Citation.]” (McClain v. Prunty (9th Cir. 2000) 217 F.3d 1209, 1220.)
We recognize that the prosecutor apparently did not challenge one Hispanic female who ultimately became part of the trial jury. “‘While the fact that the jury included members of a group allegedly discriminated against is not conclusive, it is an indication of good faith in exercising peremptories, and an appropriate factor for the trial judge to consider in ruling on a Wheeler objection.’ [Citation.]” (People v. Ward (2005) 36 Cal.4th 186, 203.) This factor does not weigh in support of the trial court’s ruling in the present case, however, because the record furnishes no basis for concluding that the prosecutor’s reason for striking M.D. was anything other than her race/ethnicity. As one defense attorney argued, if indeed the prosecutor’s true reason was the desire for a more gender-balanced jury, he could have excused any of the eight non-Hispanic women then in the box.
In stating his reasons, the prosecutor also mentioned that M.D. worked at the winery. He later elaborated that the nature of her work (she was a forklift driver) was a concern compared to the other individuals. The record does not support the trial court’s finding upholding this reason. The prosecutor neither questioned M.D. concerning her employment nor specified his concerns. “The party seeking to justify a suspect excusal [is required to] offer a genuine, reasonably specific, race- or group-neutral explanation related to the particular case being tried. [Citations.]” (People v. Arias, supra, 13 Cal.4th at p. 136, italics added; accord, Batson, supra, 476 U.S. at p. 98, fn. 20 [prosecutor must give clear & reasonably specific explanation of legitimate reasons for exercising challenge].) The prosecutor’s explanation here is remarkably similar to that in People v. Turner (1986) 42 Cal.3d 711, 725, in which the California Supreme Court rejected the prosecutor’s proffered race-neutral reason that “‘something in [the prospective juror’s] work … would not be good for the People’s case’” as “so lacking in content as to amount to virtually no explanation.” The court stated: “If such vague remarks were held to satisfy the prosecution’s burden of rebutting a prima facie case of group discrimination, the defendant’s constitutional right to trial by a jury drawn from a representative cross-section of the community could be violated with impunity.” (Ibid.)
“The trial court was obligated to evaluate ‘all the circumstances of the case’ in the step three evaluation of whether the prosecutor’s race-neutral reasons for peremptorily excusing Hispanic potential [juror M.D. were] sincere and credible, or whether the defendants instead had sustained their burden of proving unlawful discriminatory intent in the exercise of the peremptory challenges. [Citation.]” (People v. Reynoso, supra, 31 Cal.4th at p. 925.) “The question for the trial court was this: was the reason given for the peremptory challenge a ‘legitimate reason,’ legitimate in the sense that it would not deny defendants equal protection of law [citation], or was it a disingenuous reason for a peremptory challenge that was in actuality exercised solely on grounds of group bias?” (Ibid.)
Given the prosecutor’s lack of specificity, the trial court had no real basis upon which to conclude the reason was genuine and legitimate. Accordingly, we, in turn, cannot conclude substantial evidence supports that court’s determination. “While [People v.] Reynoso [, supra, 31 Cal.4th 903] holds that the trial judge was not required ‘to make explicit and detailed findings for the record’ so long as the prosecutor’s reasons ‘are neither contradicted by the record nor inherently implausible’ and ‘nothing in the record is in conflict with the usual presumptions to be drawn’ [citation], the Supreme Court did not there indicate that the trial court should be presumed to have properly made a sincere and reasoned evaluation of the prosecutor’s reasons for exercising his peremptory challenges when the prosecutor’s explanation is so vacuous that it precludes evaluation. In light of the vague and unsupported reasons offered by the prosecutor, additional inquiry was necessary. [Citations.] While specific findings were not required, probing into what specifically about [M.D.’s work] the prosecutor disliked presumably would have provided descriptions which the court could have evaluated in determining the genuineness of the proffered explanation. If the explanation given by the prosecutor here were deemed sufficient, the entire point of requiring an explanation would be vitiated. All the prosecutor would need do is repeat the mantra that he did not like the prospective juror’s [work], and the trial court would be entitled to presume that the prosecutor was not influenced by the race or ethnicity of the prospective juror. Such a conclusion would effectively eliminate the second step of the Batson/Wheeler analysis and would be at odds with [People v.] Turner[, supra, 42 Cal.3d 711] a decision which the majority in Reynoso did not cite and certainly did not overrule.” (People v. Allen (2004) 115 Cal.App.4th 542, 552-553, fns. omitted.) This is equally true when, as here, we consider this type of vague, unspecific explanation in conjunction with the third step of the Batson-Wheeler analysis.
We may speculate the prosecutor was concerned about a perceived lack of education on M.D.’s part. However, “speculation ‘does not aid our inquiry into the reasons the prosecutor actually harbored’ for a peremptory strike[.]” (Johnson, supra, 545 U.S. at p. 172.) Moreover, such speculation would be undercut by an examination of those jurors the prosecutor did not challenge – a comparison the prosecutor himself implicitly invited. The record shows the prosecutor did not seek to excuse a male, non-Hispanic forklift driver, nor did he seek to excuse a female, non-Hispanic housewife who furnished no information from which her educational level might be surmised. In any event, the burden is not on us to divine the prosecutor’s possible thinking; the burden is on him or her to state genuine, reasonably specific reasons. Similarly, while we might conclude that the prosecutor reasonably could have been concerned by M.D.’s agreement with the notion that sitting on a jury would be kind of a vacation for her, and, hence, that she might not take the case as seriously as she should, the prosecutor gave no such explanation. (See People v. Allen, supra, 115 Cal.App.4th at p. 551, fn. 5.) Our concern is with the explanation the prosecutor gave to the trial court, not with a theory that we or a party might devise on appeal. (People v. Turner, supra, 42 Cal.3d at p. 722, fn. 7.) At the third step of the Batson-Wheeler analysis, what matters is not that the prosecutor might have had good reasons, but the real reason the prospective juror was stricken. (Johnson, supra, 545 U.S. at p. 172.)
On the facts of this case, a consideration of the jury’s composition in conjunction with our analysis of the prosecutor’s proffered reasons for excusing M.D. leads to the conclusion that Jordan has adequately demonstrated the prosecutor employed an impermissible group bias. (Compare People v. Ward, supra, 36 Cal.App.4th at pp. 201-205.) Accordingly, we need not determine whether the trial court erred in denying the Batson-Wheeler motion insofar as it concerned E.P. “The exclusion by peremptory challenge of a single juror on the basis of race or ethnicity is an error of constitutional magnitude requiring reversal. [Citations.]” (People v. Silva, supra, 25 Cal.4th at p. 386.)
II
COUNT 3 AS A NECESSARILY INCLUDE OFFENSE OF COUNTS 1 AND 2
Jordan contends his conviction on count 3 must be reversed and retrial thereon barred. He says a violation of section 186.22, subdivision (a), as charged in count 3, is a necessarily included offense of attempted murder and assault, where, as in counts 1 and 2 here, those offenses are enhanced pursuant to section 186.22, subdivision (b)(1). From his reading of Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi) and People v. Sengpadychith (2001) 26 Cal.4th 316 (Sengpadychith), Jordan concludes that enhancements constitute elements of an aggravated version of the substantive offense; hence, it follows that they must be considered in determining whether one offense is necessarily included within another.
Although it appears the Attorney General has misread Jordan’s argument, we decline to imply a concession as Jordan would have us do.
“Although the reason for the rule is unclear, [the California Supreme Court] has long held that multiple convictions may not be based on necessarily included offenses. [Citations.]” (People v. Pearson (1986) 42 Cal.3d 351, 355.) “‘The test in this state of a necessarily included offense is simply that where an offense cannot be committed without necessarily committing another offense, the latter is a necessarily included offense.’ [Citations.]” (Ibid.) The California Supreme Court recently clarified that “enhancements are neither recognized nor considered in determining whether the defendant can be convicted of multiple charged crimes based on necessarily included offenses.” (People v. Sloan (2007) 42 Cal.4th 110, 113; see also id. at pp. 122-123 [rejecting argument that Apprendi & Sengpadychith compel different conclusion]; accord, People v. Izaguirre (2007) 42 Cal.4th 126, 128, 130-134.) Although Jordan claims his case presents us with a related issue, in our view it is squarely governed by the California Supreme Court’s recent pronouncements in Sloan and Izaguirre. Hence, his argument fails. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
Since the judgment must be reversed, we do not address the remainder of Jordan’s claims, which involve issues either unlikely to arise in the event of a retrial or that can be presented to the trial court at that time.
DISPOSITION
The judgment is reversed.
WE CONCUR: Harris, J., Hill, J.
Carroll, who received threatening notes while in jail after he spoke to authorities, did not expect any help in return for his cooperation. His pending cases remained set for trial, and no promises were made by the district attorney’s office in regard to them. He did receive an own recognizance release on December 23, 2004, however, because of his health problems. According to Assistant District Attorney Eric Wyatt, the main reason for the release was the possible risk to Carroll. It is common to grant such a release if the confidential informant is in custody and there is a possibility his or her life may be in danger. Although Carroll’s medical condition was known, it did not play a significant part in the decision.
Carroll explained that he testified out of a desire to “put a little glitch” into things that were getting out of hand, involving the activities of Nortenos who were housed in module D at the jail. Based on observation, common knowledge, and being housed in the module for five months, Carroll believed that those involved in the attack and Arroyos were part of that group. The group was becoming bolder and more aggressive, and Carroll informed correctional officers of their actions on this occasion in an attempt to get the group scattered into different units and because he was tired of being locked down every time something happened in the module. He personally did not have any problems with any of the defendants.