Opinion
B286908
02-10-2020
THE PEOPLE, Plaintiff and Respondent, v. KENAZ PARKER, Defendant and Appellant.
Erica Gambale, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, and Steven E. Mercer, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. MA071549) APPEAL from a judgment of the Superior Court of Los Angeles County, Kathleen Blanchard, Judge. Remanded for resentencing. Erica Gambale, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, and Steven E. Mercer, Deputy Attorney General, for Plaintiff and Respondent.
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Kenaz Parker appeals from his judgment of conviction of two counts of assault by means of force likely to produce great bodily injury. Parker asserts the judgment must be reversed because the prosecution improperly exercised its peremptory challenges to excuse African-American prospective jurors in violation of Batson v. Kentucky (1986) 476 U.S. 79 (Batson) and People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler). We remand for resentencing in light of the recent amendments to Penal Code section 667.5, subdivision (b), but otherwise affirm.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
In an information, the Los Angeles District Attorney charged Parker with two counts of assault by means of force likely to produce great bodily (Pen. Code, § 245, subd. (a)(4)). The alleged victims were Lillian Ocasio (count 1) and Kevin Kennedy (count 2). As to count 2, it was alleged that Parker personally inflicted great bodily injury on the victim (§ 12022.7, subd. (a)). It also was alleged that Parker had one prior serious or violent conviction within the meaning of section 667, subdivision (a)(1) and/or the "Three Strikes" law (§§ 667, subds. (b)-(j), 1170.12), and had served one prior prison term within the meaning of section 667.5, subdivision (b).
All further statutory references are to the Penal Code.
At trial, the evidence showed that, on the morning of June 28, 2017, Kennedy and his wife, Ocasio, were collecting recyclable items at park when they were confronted by Parker. During an argument over a discarded water bottle, Parker punched Ocasio twice in the face. Parker also hit both Ocasio and Kennedy with a stick. Ocasio sustained an injury to her head, and Kennedy suffered a broken wrist.
The jury found Parker guilty on both assault counts, but found the great-bodily-injury enhancement to be not true. Parker admitted a prior felony conviction for robbery. On count 1, the trial court sentenced Parker to a state prison term of seven years, consisting of the middle term of three years doubled to six years under the Three Strikes law, plus one consecutive year under section 667.5, subdivision (b). On count 2, the court sentenced Parker to a concurrent term of six years, consisting of the middle term of three years doubled to six years under the Three Strikes law. Parker timely appealed.
During the pendency of the appeal, we invited the parties to submit supplemental briefing addressing the effect, if any, of recent amendments to section 667.5, subdivision (b) on Parker's sentence.
DISCUSSION
I. Denial of Wheeler Motion
On appeal, Parker challenges the trial court's denial of a Wheeler motion that he made during jury voir dire. Parker, who is African-American, contends the motion should have been granted because the prosecution violated his federal and state constitutional rights by exercising three of six peremptory challenges to excuse African-American prospective jurors.
A. Relevant Proceedings
At the start of jury selection, a panel of 35 prospective jurors was called to the courtroom and sworn for voir dire. The trial court excused three prospective jurors for cause. The parties then began exercising their peremptory challenges.
The prosecutor exercised his first peremptory challenge to excuse Prospective Juror No. 9553, an African-American woman. She lived in Palmdale with her sister, and worked in a hospital with patient records. She had served on a jury 10 years earlier in a criminal case that reached a verdict. She had been a victim of car theft, and both she and her sister had been victims of identity theft.
The prosecutor used his second peremptory challenge on Prospective Juror No. 5977, a White woman. She lived in Quartz Hill, and was married with two adult children. Both she and her husband were registered nurses. She had served on a jury in a criminal case, but the defendant accepted a plea bargain early in the trial. A number of years earlier, her brother had been arrested for being the get-away driver in a theft. She had no opinion as to whether he was treated fairly in that case, and did not believe it would influence her ability to be fair and impartial in this case.
The prosecutor used his third peremptory challenge on Prospective Juror No. 2988, a White woman. She lived in Lancaster with her husband. She was a paraeducator at an elementary school, and her husband was a dishwasher at a restaurant. She had never served on a jury. Her home had been burglarized many years earlier.
The prosecutor exercised his fourth peremptory challenge to excuse Prospective Juror No. 3324, an African-American man. He resided in Palmdale with his wife. He was a massage therapist and his wife worked in security. He had no prior jury experience. His uncle had been involved in a violent crime, but he did not know enough about the case to have an opinion about it. He was once robbed at gunpoint while at work, and he had to testify in that trial. His father was killed in a drive-by shooting, and his mother had been the victim of car theft.
The prosecutor used his fifth peremptory challenge on Prospective Juror No. 2511, a White woman. She lived in Lancaster, and was married with four children. She was a building inspector, and her husband was a UPS driver. She had a paralegal certificate, but no prior experience in criminal law. Her stepson had a felony conviction for drug possession, but she did not know how he was treated in that case and did not believe it would affect her ability to be a fair and impartial juror. She had been the victim of both car theft and identity theft in the past.
The prosecutor exercised his sixth peremptory challenge to excuse Prospective Juror No. 6727, an African-American man. He lived in Lancaster with his wife and worked in sales. His wife previously worked in government administration. He had served on a jury six years earlier in a criminal case that reached a verdict. He had a close personal friend that worked in military police at Camp Pendleton. He had been the victim of two home burglaries, and during one of the crimes, the burglar was caught in the act. During voir dire, the prosecutor asked a hypothetical question about whether the jurors would infer that a man in a boat on a lake holding a fishing rod in the water was in fact fishing. In response, Prospective Juror No. 6727 tried to shout an answer out of turn and was reprimanded by the trial court. He then gave a convoluted answer suggesting that the man in the boat may not have been fishing.
Immediately following the prosecutor's sixth peremptory challenge, defense counsel made a Wheeler motion, asserting that the prosecutor had "kicked off every single African-American, except one." In response, the trial court noted that the prospective jurors who had been excused by the prosecutor consisted of one African-American woman, two African-American men, and three White women. The court then asked defense counsel, "So are you stating anything other than just numbers at this point?" Counsel answered that she had established a prima facie case of discrimination because the prosecutor had "gotten rid of every single African-American juror," and there was only one remaining African-American prospective juror in the panel seated in the courtroom.
The trial court disagreed that a prima facie showing of discrimination had been made, stating: "And once again, I don't think that that is enough." The court then added: "I think that there are race neutral reasons-at least as far as I recall-with regard to a number of these jurors. In particular, ones that stand out in my mind; Juror[ ] [3324] - who was the massage therapist who was young and long-haired, appeared to be counter-culture, for example. I don't think race matters."
The trial court then invited the prosecutor to provide his reasons for the peremptory challenges for the record, stating: "But the challenge having been made, at this point, if the People want to state their reasons for the record, I will hear you. . . ." The prosecutor responded: "As to the . . . juror number ending in 6727; I gave a hypothetical-the fishing hypothetical. And he answered that question that he did not believe that the person was fishing. I believe he was being contrariant and that is why I kicked him. With regard to the . . . counter-culture juror, number 2234, that was also my reasoning for kicking that person. The juror ending in number 9553; I didn't like the way she was looking at me. I didn't like the way she was behaving during jury selection, feeling as though [she] was disinterested and didn't want to participate. That is why I got rid of her." The prosecutor also noted for the record that he had not excused all of the African-American prospective jurors in the jury box, and that the prospective juror in seat number six was an African-American woman that he wanted on the jury.
Although the prosecutor referred to this prospective juror by the number 2234, the parties agree the prosecutor misspoke and was actually referring to Prospective Juror No. 3324.
After confirming the parties had no further argument on the matter, the trial court denied the Wheeler motion. The court stated: "And just so that the record is clear, . . . at this point the court will note that Juror Number 6 is African-American. In addition, there are two women at this point-I believe it is Juror Number 28 and 29 that are African-American. So I don't agree with the assessment of the defense. We have one of the most diverse jury pools in the county. And I have worked at almost every courthouse in the county. I accept the prosecution's race neutral reasons for the excusal of the jurors. So the Wheeler motion is respectfully denied."
When jury selection resumed, the prosecutor exercised a seventh peremptory challenge and then accepted the jury panel. After exercising two additional peremptory challenges for a total of eight, the defense also accepted the panel. As described by the trial court, the final composition of the jury was five White men, three African-American women, three Hispanic women, and one Hispanic man.
The three alternates consisted of one White woman, one White man, and one Hispanic man.
B. Governing Legal Principles
"Both the state and federal Constitutions prohibit the use of peremptory strikes to remove prospective jurors on the basis of group bias. (Batson, supra, 476 U.S. at p. 89; Wheeler, supra, 22 Cal.3d at pp. 276-277.)" (People v. Scott (2015) 61 Cal.4th 363, 383 (Scott).) "Under a now familiar three-step process, a defendant must first '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."' [Citations.] The defendant's ultimate burden is to demonstrate that 'it was more likely than not that the challenge was improperly motivated.' [Citation.] The same rules apply to state constitutional claims. [Citation.]" (People v. Armstrong (2019) 6 Cal.5th 735, 766.)
"A prima facie case of racial discrimination in the use of peremptory challenges is established if the totality of the relevant facts gives '"rise to an inference of discriminatory purpose."' [Citation.]" (People v. Thomas (2014) 53 Cal.4th 771, 793-794.) Among the "types of evidence [that] may prove particularly relevant" in evaluating whether a prima facie case of discrimination exists "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. [Citations.]" (Scott, supra, 61 Cal.4th at p. 384; accord, People v. Johnson (2019) 8 Cal.5th 475, 507-508.) "'"When a trial court denies a Wheeler motion without finding a prima facie case of group bias, the appellate court reviews the record of voir dire for evidence to support the trial court's ruling. [Citations.] We will affirm the ruling where the record suggests grounds upon which the prosecutor might reasonably have challenged the jurors in question." [Citation.]' [Citation.]" (People v. Pearson (2013) 56 Cal.4th 393, 422.)
If a defendant establishes a prima facie case of discrimination, the burden shifts to the prosecutor to provide a nondiscriminatory reason for exercising the peremptory challenge. The prosecutor "'need only offer a genuine, reasonably specific, race- or group-neutral explanation related to the particular case being tried. [Citations.] The justification need not support a challenge for cause, and even a "trivial" reason, if genuine and neutral, will suffice.'" (People v. Ervin (2000) 22 Cal.4th 48, 74-75; accord, People v. Hardy (2018) 5 Cal.5th 56, 76.) "'We review a trial court's determination regarding the sufficiency of a prosecutor's justifications 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. [Citations.]'" (People v. Winbush (2017) 2 Cal.5th 402, 434; accord, People v. Armstrong, supra, 6 Cal.5th at pp. 767-768.)
C. The Trial Court Did Not Err in Denying Parker's Wheeler Motion
Parker claims the trial court committed reversible error in denying his Wheeler motion. He specifically asserts that the trial court failed to make a sincere and reasoned attempt to evaluate the prosecutor's proffered explanations for excusing three African-American prospective jurors. He further argues that, had the trial court adequately examined the prosecutor's stated reasons, it would have concluded that they were not supported by the record. The Attorney General contends that the trial court properly denied the motion because Parker failed to establish a prima facie case of race discrimination, and in any event, the prosecutor provided legitimate, race-neutral reasons for his peremptory challenges. Based on the record before us, we conclude the Wheeler motion was properly denied.
1. Appellate Review of the Trial Court's Ruling Begins At the First Stage of the Batson/Wheeler Inquiry
As an initial matter, the parties dispute whether we should review the trial court's ruling at the first stage or the third stage of the Batson/Wheeler inquiry. Parker claims that, because the trial court never explicitly stated whether a prima facie case of discrimination had been established and instead ruled on the validity of the prosecutor's proffered reasons for excusing the challenged prospective jurors, we should direct our review to the third stage of the inquiry. The Attorney General, on the other hand, contends that our review should begin at the first stage because the trial court did make a finding that Parker had failed to state a prima facie case and then invited the prosecutor to state the reasons for his peremptory challenges for the record. We agree with the Attorney General that our analysis should start with a review of the trial court's first-stage ruling.
In Scott, the Supreme Court held that a trial court's evaluation of a prosecutor's proffered reasons for exercising a peremptory challenge did not moot a prior finding that no prima facie case of discrimination exists. (Scott, supra, 61 Cal.4th at pp. 391-392.) In reaching this holding, the Scott court set forth the following procedure for appellate review of a Batson/Wheeler motion: "[W]here (1) the trial court has determined that no prima facie case of discrimination exists, (2) the trial court allows or invites the prosecutor to state his or her reasons for excusing the juror for the record, (3) the prosecutor provides nondiscriminatory reasons, and (4) the trial court determines that the prosecutor's nondiscriminatory reasons are 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. [Citations.] 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." (Scott, supra, 61 Cal.4th at p. 391, fn. omitted.)
In this case, the trial court first rejected defense counsel's claim that she had made a prima facie showing of discrimination, and then invited the prosecutor to state his reasons for excusing the three African-American prospective jurors for the record. While Parker is correct that the trial court did not explicitly state that no prima facie case existed, the record demonstrates that the court made that finding. Indeed, in response to defense counsel's assertion that she had "made a prima facie case" by showing that the prosecutor had "gotten rid of every single African-American juror," the court stated: "I don't think that that is enough." The court added that there were "race neutral reasons . . . with regard to a number of these jurors." It then concluded: "I don't think race matters." Following this exchange with defense counsel, the court turned to the prosecutor and stated: "[A]t this point, if the People want to state their reasons for the record, I will hear you . . . ." After listening to the prosecutor's explanations for his peremptory challenges, the court stated that it "accept[ed] the prosecution's race neutral reasons," and that the Wheeler motion was denied.
Contrary to Parker's characterization on appeal, this is not a case where the trial court skipped over the first stage of the Batson/Wheeler inquiry altogether because the prosecutor volunteered his or her reasons for excusing the prospective jurors in question. (See Hernandez v. New York (1991) 500 U.S. 352, 359 (plur. opn. of Kennedy, J.).) Rather, this is a case where the trial court made clear that it did not accept defense counsel's claim that a prima facie case had been shown, and only then invited the prosecutor to state his reasons for the peremptory challenges for the record. Therefore, in accordance with the procedure set forth in Scott, we begin our review of the trial court's ruling at the first stage of the Batson/Wheeler inquiry.
2. The Wheeler Motion Was Properly Denied
The record reflects that, at the time defense counsel made the Wheeler motion, the prosecutor had exercised three of six peremptory challenges to excuse African-American prospective jurors. In arguing to the trial court that a prima face case of race discrimination had been shown, defense counsel asserted that the prosecutor "had kicked off every single African-American, except one." When the trial court inquired whether defense counsel was "stating anything other than just numbers at this point," counsel reiterated that the prosecutor had excused "every single African-American juror" seated in the jury box. She added that there was only one remaining African-American prospective juror in the panel seated in the courtroom, and that the prosecutor simply had not had an opportunity to excuse that individual. Based on this alleged statistical evidence, defense counsel stated, "I think I have made a prima facie case."
While it is true that "[t]he exclusion by peremptory challenge of a single juror on the basis of race or ethnicity is an error of constitutional magnitude requiring reversal" (People v. Silva (2001) 25 Cal.4th 345, 386), the prima face showing is not made merely by establishing that an excluded juror was a member of a cognizable group. (People v. Howard (2008) 42 Cal.4th 1000, 1018; People v. Bonilla (2007) 41 Cal.4th 313, 343.) Rather, "'in drawing an inference of discrimination from the fact one party has excused "most or all" members of a cognizable group [citation], a court finding a prima facie case is necessarily relying on an apparent pattern in the party's challenges.' [Citation.] Such a pattern will be difficult to discern when the number of challenges is extremely small." (Id. p. 343, fn. 12; see also People v. Garcia (2011) 52 Cal.4th 706, 747 ["[w]hile no prospective juror may be struck on improper grounds, we have found it "'impossible,"' as a practical matter, to draw the requisite inference where only a few members of a cognizable group have been excused"].)
In People v. Farnam (2002) 28 Cal.4th 107, for instance, the defendant sought to establish a prima facie case on the ground that four of the first five peremptory challenges exercised by the prosecution were against African-American prospective jurors and a very small minority of jurors on the panel were African-American. (Id. at p. 136.) The Supreme Court concluded that the statistical disparities cited by the defendant "fall short of a prima facie showing." (Id. at p. 137.) Similarly, in People v. Hoyos (2007) 41 Cal.4th 872, disapproved on other grounds in People v. Black (2014) 58 Cal.4th 912, 920, the defendant claimed that the prosecution's use of peremptory challenges to strike three of the only four Hispanics on the panel was sufficient to demonstrate a prima facie case. (People v. Hoyos, supra, 41 Cal.4th at p. 901.) The Supreme Court rejected that argument, reasoning that "although a prosecutor's excusal of all members of a particular group may establish a prima facie discrimination case, especially if the defendant belongs to the same group, this fact alone is not conclusive." (Ibid.; see also People v. Rhoades (2019) 8 Cal.5th 393, 429 [prima facie case of discrimination not shown where prosecutors "used four of their eight peremptory challenges to eliminate every African-American seated in the jury box"]; People v. Johnson, supra, 8 Cal.5th at p. 507 [no prima facie showing where "prosecutor's excusal rate for African-American jurors was 60 percent-three of five-whereas his exclusion rate for the rest of the panel was 34 percent"].) In this case, the prosecutor's use of three of six peremptory challenges to excuse African-American prospective jurors was insufficient, standing alone, to establish a prima face case of race discrimination.
Other circumstances appearing in the record further support the trial court's determination that Parker failed to make a prima face showing of discrimination. As the trial court noted, defense counsel's description of the number of African-Americans in the jury panel was not factually accurate. At the time the Wheeler motion was made, the prosecutor had not excused "every single African-American" seated in the jury box, as defense counsel asserted. The prospective juror in seat number six was an African-American woman, and the prosecutor specifically stated that he "want[ed] her on the panel." Additionally, there were two other African-American prospective jurors in the panel seated in the courtroom (not one as defense counsel claimed). The record further reflects that the prosecutor initially accepted a panel that included two African-Americans, and later accepted a panel that included three African-Americans. "'While acceptance of one or more [African-American] jurors by the prosecution does not necessarily settle all questions about how the prosecution used its peremptory challenges, these facts nonetheless help lessen the strength of any inference of discrimination that the pattern of the prosecutor's strikes might otherwise imply.' [Citation.]" (People v. Johnson, supra, 8 Cal.5th at p. 508 [prosecution's acceptance of a panel with three African-American jurors was an indication of good faith in exercising its peremptory strikes]; see also People v. Lenix (2008) 44 Cal.4th 602, 629 ["prosecutor's acceptance of the panel containing a Black juror strongly suggests that race was not a motive in his challenge"]; People v. Gray (2005) 37 Cal.4th 168, 187-188 ["the exclusion of two African-American jurors and the retention of two failed to raise an inference of discrimination"].)
Given Parker's reliance on statistical evidence to establish a prima facie case of discrimination, we also may consider the final composition of the jury in evaluating the merits of his claim. (People v. Bonilla, supra, 41 Cal.4th at pp. 345-346 [where defendant rested his prima facie case on statistical analysis of prosecution's peremptory challenges, it was proper for reviewing court to consider whether ultimate composition of jury supported inference of discriminatory intent].) Here, the empaneled 12-person jury included three African-American jurors. The ultimate composition of the jury (three of 12, or 25 percent African-American) thus mirrored the composition of the original jury pool (seven of 35, or 20 percent African-American). (Id. at p. 346 [no prima facie showing of gender bias where "the ultimate composition of the jury (42 percent women) mirrored that of the juror pool (38 percent women)"]; People v. Hartsch (2010) 49 Cal.4th 472, 488 [no prima facie case of race discrimination where "African-Americans were represented on the panel in a proportion roughly equal to their representation in the candidate pool: two of 12, or 17 percent of the panel, as compared to seven of 48, or 15 percent in the pool"].)
On appeal, Parker argues that the trial court erred in denying the Wheeler motion because the prosecutor's proffered reasons for excusing the three African-American prospective jurors were not supported by the record. However, whether the record supports the prosecution's race-neutral explanations for its peremptory challenges is not relevant at the first stage of the Batson-Wheeler inquiry. As the Supreme Court explained in Scott, "[a]lthough a court reviewing a first-stage ruling that no inference of discrimination exists 'may consider apparent reasons for the challenges discernible on the record' as part of its 'consideration of "all relevant circumstances"' [citation], the fact that the prosecutor volunteered one or more nondiscriminatory reasons for excusing the juror is of no relevance at the first stage." (Scott, supra, 61 Cal.4th at pp. 390.)
Moreover, even assuming that a prima facie case of race discrimination had been established at the first-stage inquiry, the record does not support a finding of error at the third stage. Instead, the record shows that the prosecutor offered reasonable, race-neutral justifications for its peremptory challenges, which were credited by the trial court. With respect to Prospective Juror No. 6727, the prosecutor stated that he found the juror's response to the hypothetical question about whether a person was fishing to be "contrariant." While Parker argues that the juror's response reflected a well-reasoned opinion, the record does not support this assertion. It appears the prosecutor's hypothetical was targeted toward determining whether the prospective jurors would be able to draw rational, common sense inferences from the evidence. In response to the hypothetical, however, Prospective Juror No. 6727 first shouted an answer out of turn and then gave a confusing and contradictory explanation as to why a man sitting in a boat with a fishing line in the water may not be fishing after all. The prosecutor concluded that the juror's response suggested an antagonistic attitude toward the People's case. While Parker disputes whether the juror actually intended for his answer to be antagonistic, "[a]ll that matters is that the prosecutor's reason for exercising the peremptory challenge is sincere and legitimate, legitimate in the sense of being nondiscriminatory." (People v. Reynoso (2003) 31 Cal.4th 903, 924.) Here, the prosecutor's proffered explanation for excusing Prospective Juror No. 6727 constituted a legitimate, nondiscriminatory reason for the peremptory challenge.
Specifically, Prospective Juror No. 6727 stated: "If the worm's taking a bath and he's fishing, and the guy who's reeling him in and he keeps it, he's fishing. If he takes the fish off and throws it back; puts the work back to keep it clean then. . . ." In response, the prosecution asked the prospective juror, "So would you acquit that guy of fishing?" He replied, "If he kept the fish and cooked it, absolutely."
With respect to the two other peremptory challenges at issue, the prosecutor indicated that he excused Prospective Juror No. 3324 based on his "counter-culture" demeanor, and excused Prospective Juror No. 9553 based on how she was "looking" at the prosecutor and her lack of interest in the proceedings. Parker contends that the prosecutor's stated reasons were not supported by the record because both prospective jurors answered all of the questions posed to them in voir dire, and the prosecutor failed to engage them in more substantive questioning. However, there is no requirement that a prosecutor ask a minimum number of questions before deciding whether to accept or excuse a prospective juror. Nor is there any requirement that the prosecutor exercise a peremptory challenge solely on the basis of the verbal responses elicited in voir dire. Instead, "[i]t is well settled that '[p]eremptory challenges based on counsel's personal observations are not improper.' [Citation.]" (People v. Reynoso, supra, 31 Cal.4th at p. 917.) Further, "'race-neutral reasons for peremptory challenges often invoke a juror's demeanor (e.g., nervousness, inattention)'" (People v. Lenix, supra, 44 Cal.4th at p. 614), and "'nothing in Wheeler disallows reliance on the prospective jurors' body language or manner of answering questions as a basis for rebutting a prima facie case' of exclusion for group bias" (People v. Reynoso, supra, 31 Cal.4th at p. 917). "Because the 'trial court is best situated to evaluate both the words and the demeanor of jurors who are peremptorily challenged, as well as the credibility of the prosecutor who exercised those strikes[,] ... "these determinations of credibility and demeanor lie peculiarly within a trial judge's province," and "in the absence of exceptional circumstances, we [will] defer to the trial court."' [Citation.]" (People v. Armstrong, supra, 6 Cal.5th at p. 770.) Here, the trial court reasonably could have inferred from the prosecutor's proffered reasons for excusing Prospective Juror Nos. 3324 and 9553 that he genuinely believed their demeanor reflected a potential bias against the People's case. There is nothing in the record to suggest that the prosecutor's articulated concerns about these prospective jurors were a mere pretext for purposeful discrimination.
With respect to Prospective Juror No. 3324, the record reflects that the alleged "counter-culture" demeanor of this juror was first raised by the trial court in deciding whether the defense had made a prima facie showing of discrimination. The juror's demeanor was then cited by the prosecutor after the court invited him to state his reasons for excusing the challenged jurors for the record. In general, speculation about the reasons a prosecutor might have had for striking a prospective juror goes beyond the proper role of the court in assessing the prima facie case. (People v. Rhoades, supra, 8 Cal.5th at pp. 430-431.) However, in determining whether the defendant has established a prima facie case, "[a] court may . . . 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." (Scott, supra, 61 Cal.4th at p. 384; see People v. Rhoades, supra, 8 Cal.5th at p. 431 ["where the record reveals 'obvious race-neutral grounds for the prosecutor's challenges to the prospective jurors in question,' those reasons can definitively undermine any inference of discrimination that an appellate court might otherwise draw from viewing the statistical pattern of strikes in isolation"].) While Parker argues on appeal that the trial court failed to make a sincere and reasoned effort to analyze the prosecutor's proffered reasons at the third stage, he does not assert that the court erred in considering Prospective Juror No. 3324's alleged demeanor in assessing the prima face case. --------
As our Supreme Court has recognized, "[a] prospective juror may be excused based upon facial expressions, gestures, hunches, and even for arbitrary or idiosyncratic reasons." (People v. Lenix, supra, 44 Cal.4th at p. 613.) Indeed, a peremptory challenge may be based on "no more than a 'hunch' about the prospective juror [citation], so long as it shows that the peremptory challenges were exercised for reasons other than impermissible group bias." (People v. Williams (1997) 16 Cal.4th 635, 664.) Additionally, where, as here, "the prosecutor's stated reasons are both inherently plausible and supported by the record, the trial court need not question the prosecutor or make detailed findings" in deciding to credit those reasons as a genuine, race-neutral justification for a peremptory challenge. (People v. Silva, supra, 25 Cal.4th at p. 386; see also People v. Williams (2013) 56 Cal.4th 630, 653 [noting that the trial court is not required "'to make explicit and detailed findings for the record in every instance in which the court determines to credit a prosecutor's demeanor-based reasons for exercising a peremptory challenge'"]; People v. Jones (2011) 51 Cal.4th 346, 361 [where trial court denied Wheeler motion after listening to prosecution's reasons for its peremptory challenges and then inviting defense counsel to respond, "the court was not required to do more than what it did"].) In this case, the totality of relevant facts dispels any inference of a discriminatory intent on the part of the prosecutor in exercising his peremptory challenges to excuse three African-American prospective jurors. The trial court accordingly did not err in denying the Wheeler motion.
II. The Matter Must Be Remanded For Resentencing
In October 2019, the Legislature passed Senate Bill No. 136 (Stats. 2019, ch. 590, § 1) (S.B. 136) amending section 667.5, subdivision (b). Prior to these amendments, "[i]n sentencing a defendant for a new felony offense, a one-year sentence enhancement under section 667.5, subdivision (b) [was] applied 'for each prior separate prison term or county jail term imposed under subdivision (h) of Section 1170 or when sentence is not suspended for any felony.'" (People v. Buycks (2018) 5 Cal.5th 857, 889.) The only exception was for defendants who remained "free for five years of both prison custody and the commission of a new offense resulting in a felony conviction." (Ibid.)
S.B. 136 amends section 667.5, subdivision (b), to state that a one-year term under that section shall be imposed "for each prior separate prison term for a sexually violent offense . . . ." S.B. 136 thus eliminates the prior prison term enhancement except in cases involving sexually violent offenses. Parker's prior conviction was not for a sexually violent offense. Accordingly, under section 667.5, subdivision (b), as amended, Parker would not qualify for the imposition of the one-year enhancement for his prior prison term.
S.B. 136 is effective January 1, 2020. (Cal. Const., art. IV, § 8, subd. (c)(2).) As of that date, Parker's conviction was not yet final; and the remittitur will not have issued. (See People v. Vieira (2005) 35 Cal.4th 264, 306 ["for the purpose of determining retroactive application of an amendment to a criminal statute, a judgment is not final until the time for petitioning for a writ of certiorari in the United States Supreme Court has passed"].) In their supplemental briefing, both parties agree that section 667.5, subdivision (b), as amended, applies retroactively to Parker, who will benefit from the reduced sentence. (See People v. Brown (2012) 54 Cal.4th 314, 323-324; In re Estrada (1965) 63 Cal.2d 740, 748 [for a non-final conviction, "where the amendatory statute mitigates punishment and there is no saving clause, the rule is that the amendment will operate retroactively so that the lighter punishment is imposed"].)
The parties dispute, however, whether remand for resentencing is proper. The Attorney General asserts that the case should be remanded for the trial court to reconsider its entire sentencing scheme. Parker, on the other hand, argues that the proper remedy is for this court to strike the one-year enhancement because remanding the matter could impermissibly result in an aggregate sentence that is greater than the original sentence. We conclude that the matter should be remanded for resentencing to permit the trial court to reconsider its sentencing choices in light of the changed circumstances. On remand, the trial court is directed to strike the prior prison term enhancement imposed pursuant to section 667.5, subdivision (b) and to resentence Parker in accordance with the applicable statutes and rules, provided that the aggregate sentence imposed on remand does not exceed the original sentence. (See People v. Buycks (2018) 5 Cal.5th 857, 893 ["when part of a sentence is stricken on review, on remand for resentencing 'a full resentencing as to all counts is appropriate, so the trial court can exercise its sentencing discretion in light of the changed circumstances'"]; People v. Burbine (2003) 106 Cal.App.4th 1250, 1256 ["trial judge's original sentencing choices did not constrain him or her from imposing any sentence permitted under the applicable statutes and rules on remand, subject only to the limitation that the aggregate prison term could not be increased"].)
DISPOSITION
Parker's conviction is affirmed, and the matter is remanded to the trial court for resentencing in accordance with the principles expressed in this opinion.
ZELON, J. We concur:
PERLUSS, P. J.
FEUER, J.