PEOPLE v. PINK

No. F070488.

THE PEOPLE, Plaintiff and Respondent, v. DVONTAE LARMONE PINK, Defendant and Appellant.

Court of Appeals of California, Fifth District.

Filed June 19, 2017.


ORDER MODIFYING OPINION AND DENYING REHEARING [NO CHANGE IN JUDGMENT]

LEVY, Acting P.J.

It is ordered that the opinion filed herein on May 19, 2017, be modified as follows:

1. On page 23, the third full paragraph beginning "The court noted" is deleted and the following paragraph is inserted in its place:

The court noted that case authority did not recognize young people or those lacking in experience as a cognizable class. The court stated that these cases "seem to lay the groundwork for the class that [the prosecutor] was putting [K.T.] in; that is, young, inexperienced, college-type people." The court acknowledged its duty "to make a sincere and reasoned attempt to evaluate the explanation. I'm trying to make sure the explanation is genuine or determine whether or not it's a sham or a pretext." The court made the following relevant comments:

2. On page 23, immediately following the paragraph beginning "A presumption exists" insert the following paragraph:

Our Supreme Court recently confirmed that if the prosecution offers a neutral justification, the trial court must decide whether the moving party has proven purposeful discrimination. "In order to prevail, the movant must show it was `"more likely than not that the challenge was improperly motivated."' [Citation.]" (People v. Gutierrez (June 1, 2017, Nos. S224724, S240419) ___ Cal.5th ___ [2017 Cal. Lexis 3975, 9-10] (Gutierrez).) "We review a trial court's determination regarding the sufficiency of tendered justifications with `"great restraint."' [Citation.]" ( Gutierrez, supra, ___ Cal.5th ___ [2017 Cal. Lexis 3975, 11].)

3. On page 24, in the first full paragraph beginning "Here respondent concedes" the following sentence is added to the end of the paragraph:

"In the third prong, "`[t]he ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike. [Citation.]' [Citations.]" ( Id. at p. 433.)

4. On page 28, in the first full paragraph beginning "Appellant, however, contends" the last sentence is deleted and the following sentence is substituted in its place:

"We do not find appellant's view persuasive."

5. On page 29, in the third full paragraph, in the second sentence beginning "Moreover, this record" the word "skills" is deleted and the word "experience" is substituted in its place, so that the sentence now reads:

"Moreover, this record does not establish that the prosecutor failed to engage in any meaningful voir dire regarding K.T.'s life experience."

6. On page 29, the first word of the last paragraph, "Finally" is deleted so that the paragraph now begins with the word "In".

7. On page 30, the first full paragraph that begins "In conclusion, the trial court" is deleted and the following paragraphs are inserted in its place:

Finally, our analysis must address the recent opinion of Gutierrez, supra, ___ Cal.5th ___ [2017 Cal. Lexis 3975], where our Supreme Court concluded that error occurred when the trial court denied the defendants' Batson/Wheeler motion. (Gutierrez, supra, ___ Cal.5th ___ [2017 Cal. Lexis 3975, 42].) There, the three defendants were Hispanic and the prosecutor provided justifications for striking 10 Hispanic individuals from the jury. (Id. ___ Cal.5th ___ [2017 Cal. Lexis 3975, 5, 11-12].) The prosecutor stated that one such venireperson was from Wasco and this person was not aware of any gang activity occurring there. The prosecutor expressed concern regarding how this prospective juror would respond when hearing that a witness for the prosecution was from a criminal street gang out of Wasco. The prosecutor was also unsatisfied by this potential juror's "other answers" regarding how she would respond when hearing that this witness was from a criminal street gang out of Wasco. However, the prosecutor did not specify which "other answers" caused his dissatisfaction and no such answers appeared in the record to support the People's position on this point. Finally, in ruling on this issue, the trial court noted that the prosecutor had passed several times while this venireperson was still on the panel. Further, it was the trial court's belief that the prosecutor excused this potential juror because "`of the Wasco issue and also lack of life experience.'" However, on appeal, the People conceded that the prosecutor had not enumerated lack of life experience as a reason for striking this person. Gutierrez determined that the sole basis for striking this particular panelist was "the `Wasco issue.'" (Id. ___ Cal.5th [2017 Cal. Lexis 3975, 13-14].)

On appeal, the defendants argued, in part, that the prosecutor's explanation regarding his removal of this venireperson was inadequate because it did not explain why her unawareness of gang activity where she lived made her a bad or undesirable juror. The Gutierrez court rejected that argument, holding that neither Batson nor Wheeler required such an exacting standard. (Gutierrez, supra, ___ Cal.5th___ [2017 Cal. Lexis 3975, 24].) To the contrary, Gutierrez found the prosecutor's reason to be clear and reasonably specific, particularly because the prosecutor had introduced the Wasco issue with another prospective juror and provided some insight into its logic. (Gutierrez, supra, ___ Cal.5th ___ [2017 Cal. Lexis 3975, 24-25].) The high court noted that at this stage, the prosecution was not required to provide an explanation that was persuasive or even plausible, so long as facially valid. It determined that the Wasco reason was facially neutral. (Id. Cal.5th [2017 Cal. Lexis 3975, 26].)

The Gutierrez court, however, found error regarding how the trial court evaluated the credibility of the prosecutor's explanation. In evaluating the prosecutor's reasons, the trial court acknowledged that this venireperson was excused because of the Wasco issue, and the court observed that the prosecutor had passed several times while this person was still on the panel. In denying the defendants' Batson/Wheeler motion as to all Hispanic panelists, the court made a global finding under "the totality of the circumstances" that the prosecutor's reasons were not pretextual and he "appear[ed] consistent." ( Gutierrez, supra, Cal.5th [2017 Cal. Lexis 3975, 27].) The Supreme Court, however, questioned the prosecutor's consistency in this regard because only Hispanic panelists were involved in the Wasco issue. (Gutierrez, supra, ___ Cal.5th ___ [2017 Cal. Lexis 3975, 27-28].) Earlier in the opinion, Gutierrez cited 2010 census data that established nearly 80 percent of Wasco's residents identify as Hispanic or Latino. (Id. ___ Cal.5th ___ [2017 Cal. Lexis 3975, 25].)

Moreover, Gutierrez determined that the prosecutor's articulated basis for striking this potential juror "was derived solely from three responses to yes/no questions, which established that this panelist lived in Wasco and was not aware of gangs active in the Wasco area." ( Gutierrez, supra, ___ Cal.5th ___ [2017 Cal. Lexis 3975, 28].) The Gutierrez court noted it was not evident why the panelist's unawareness of gang activity in Wasco would indicate a bias against a member of a gang based in Wasco. (Id. ___ Cal.5th ___ [2017 Cal. Lexis 3975, 29].)

Gutierrez also found fault with the scant voir dire record regarding this issue. The prosecutor did not ask any follow-up questions to this prospective juror. The Supreme Court noted that the prosecutor's "swift termination of individual voir dire of this panelist" raised a question regarding "how interested he was in meaningfully examining whether her unawareness of gang activity in Wasco might cause her to be biased against the witness for the People's case." (Gutierrez, supra, ___ Cal.5th ___ [2017 Cal. Lexis 3975, 30-31].)

Finally, Gutierrez determined that the trial court was required to do more in this situation. "`[W]hen the prosecutor's stated reasons are either unsupported by the record, inherently implausible, or both, more is required of the trial court than a global finding that the reasons appear sufficient.' [Citation.]" (Gutierrez, supra, ___ Cal.5th ___ [2017 Cal. Lexis 3975, 34-35].) Although the trial court acknowledged the Wasco issue and deemed it neutral, Gutierrez faulted the trial judge for not clarifying why the Wasco reason was accepted as honest. Further, the trial court was faulted for not rejecting or clarifying the prosecution's other reason for this strike (i.e., that this venireperson had provided" other answers" which were ultimately not supported by the record). Finally, the trial court cited a "lack of life experience" as a justification for removing this potential juror. However, the prosecutor never offered that reason. (Id. ___ Cal.5th ___ [2017 Cal. Lexis 3975, 35].)

On its record, Gutierrez could not conclude that the trial court made a sincere and reasoned attempt to evaluate the prosecutor's explanation regarding this venireperson. "The court may have made a sincere attempt to assess the Wasco rationale, but it never explained why it decided this justification was not a pretext for a discriminatory purpose. Because the prosecutor's reason for this strike was not self-evident and the record is void of any explication from the court, we cannot find under these circumstances that the court made a reasoned attempt to determine whether the justification was a credible one." (Gutierrez, supra, Cal.5th [2017 Cal. Lexis 3975, 35-36].) Accordingly, Gutierrez held that the trial court's ruling was unreasonable in light of the record of voir dire proceedings. Such error was structural and required reversal of the defendants' convictions without analyzing prejudice. (Id. ___ Cal.5th ___ [2017 Cal. Lexis 3975, 36-37].)

Here, the prosecutor stated that K.T. was "a 23-year-old college student whose job experience seems to be working on campus while she's waiting for her Master's degree. It doesn't seem that she has anything else to offer to the court—to this proceeding." Later, the prosecutor stated that," consistent with the other three [students J.Z., C.A., and A.R.], adopting a comparative analysis approach, the young students with marginal life skills are being excluded by the People, which is where [K.T.] fits."

Unlike in Gutierrez, where the prosecutor's stated rationale did not make sense, the prosecutor's reasons here for striking K.T were not inherently implausible and the voir dire record supported the prosecutor's justification that K.T. was a young student with marginal life skills. The voir dire record here is more developed than the record appearing in Gutierrez and it provided substantial evidence that K.T. was a fulltime student who had not yet started her master's program. Further, unlike in Gutierrez, the prosecutor did not pass on K.T. several times before striking her. In addition, unlike in Gutierrez, the prosecutor did not provide a second justification that was wholly unsupported by the record.

Gutierrez clarified that this portion of the Batson/Wheeler inquiry focuses on the subjective genuineness of the prosecutor's stated reason and not on the objective reasonableness. ( Gutierrez, supra, Cal.5th [2017 Cal. Lexis 3975, 10].) The trial judge "must make `a sincere and reasoned attempt' to evaluate the prosecutor's justification, with consideration of the circumstances of the case known at that time, her knowledge of trial techniques, and her observations of the prosecutor's examination of panelists and exercise of for-cause and peremptory challenges. [Citation.]" (Ibid.) Pretexts for purposeful discrimination will probably be found based on implausible or fantastic justifications. (Ibid.) However, the trial court enjoys an advantage over a reviewing court based on its contemporaneous observations when assessing a prosecutor's credibility. (Id. ___ Cal.5th ___ [2017 Cal. Lexis 3975, 10-11].)

Here, the trial court had an advantage based on its contemporaneous observations when assessing the prosecutor's credibility. The trial court issued its ruling after reviewing its notes regarding voir dire. Prior to making its ruling, the trial court observed that the prosecutor was putting K.T. into a class of "young, inexperienced, college-type people." The trial court also acknowledged its duty "to make a sincere and reasoned attempt to evaluate the explanation. I'm trying to make sure the explanation is genuine or determine whether or not it's a sham or a pretext." This record demonstrates that the trial court understood its obligations and met them.

Unlike the circumstances in Gutierrez, the prosecutor's justification here was plausible. Unlike in Gutierrez, the trial court did not rely upon a justification not offered by the prosecutor. Unlike in Gutierrez, the trial court offered an explanation why it accepted the prosecutor's reasons. The trial court contemplated the youth and backgrounds of the four venirepersons identified by the prosecution. This record establishes that the trial court's ruling was based on a consideration of the circumstances of the case, its knowledge of trial techniques, and its observations of the prosecutor's voir dire examination and challenges. Gutierrez does not dictate reversal of the present matter.

In conclusion, the prosecutor offered a plausible explanation that the trial court found credible. The court reviewed its notes and drew upon its contemporaneous observations of the voir dire when analyzing the prosecutor's actions. The court noted the prosecutor used the same justification to excuse young potential jurors of both genders and of multiple races. This record shows the trial court made a sincere and reasoned effort to evaluate the prosecutor's explanation. The trial court's expressed understanding of its obligations was consistent with the precepts stated in the subsequently decided Gutierrez opinion. We are to review the "trial court's determination regarding the sufficiency of tendered justifications with `"great restraint."' [Citation.]" (Gutierrez, supra, ___ Cal.5th ___ [2017 Cal. Lexis 3975, 11].) As such, we will give its conclusions deference on appeal. Based on this record, the trial court did not err in denying appellant's motion. Appellant has not shown "it was `"more likely than not that the challenge was improperly motivated."' [Citation.]" People v. Gutierrez, supra, ___ Cal.5th ___ [2017 Cal. Lexis 3975, 9-10]. Accordingly, this claim fails.

Except for the modifications set forth, the opinion previously filed remains unchanged.

These modifications do not effect a change in the judgment.

The petition for rehearing filed by appellant is denied.

Poochigian, J., concurs.

MEEHAN, J.

I would grant appellant's petition for rehearing.

I concur with my colleagues on all aspects of the opinion except for one area of concern. I would grant rehearing in an abundance of caution to address the third prong of the Batson/Wheeler1 analysis in light of the decision in People v. Gutierrez (June 1, 2017, S224724, S240419) ___ Cal.5th ___ [2017 Cal. Lexis 3975] (Gutierrez). There is no disagreement as to the first two prongs of the Batson/Wheeler analytical framework, that appellant made a prima facie case of discrimination or that the prosecutor's justification for excluding K.T. and four other prospective jurors is race-neutral and facially valid. K.T. is an African-American female whose exclusion was challenged by appellant, described by his attorney as half African-American and half white.

The third prong under Batson/Wheeler requires, once the prosecutor establishes a race-neutral justification for excluding a prospective juror, the trial court to make a "`sincere and reasoned'" attempt to evaluate the credibility of the prosecutor's neutral explanation. (Gutierrez, supra, ___ Cal.5th at p. ___ [2017 Cal. Lexis at p. 10.].) The majority concludes that the trial court here made such a sincere and reasoned attempt as to K.T. and that the ruling is supported by substantial evidence, consisting primarily of the prosecutor's voir dire of prospective jurors who were excluded based upon their youth and "marginal life skills." As explained in Gutierrez, on review, "though we exercise great restraint in reviewing a prosecutor's explanations and typically afford deference to a trial court's Batson/Wheeler rulings, we can only perform a meaningful review when the record contains evidence of solid value.... It is the duty of courts and counsel to ensure the record is accurate and adequately developed." (Gutierrez, supra, at p. ___ [2017 Cal. Lexis at p. 36].) I believe rehearing is warranted to clarify and reconcile the mandates for what constitutes an adequate voir dire and record regarding the third prong under Batson/Wheeler after Gutierrez with what traditionally constitutes "substantial evidence" sufficient to support a trial court's ruling. (Gutierrez, supra, at p. ___ [2017 Cal. Lexis at p. 11].)

Appellant contends that an explanation for exclusion of a prospective juror may be deemed pretextual if the prosecutor failed to meaningfully voir dire the prospective juror on that subject. The majority cites to People v. Huggins (2006) 38 Cal.4th 175, 234-236 for the proposition that inadequate voir dire is not a determinative factor if the trial court's ruling is otherwise supported by substantial evidence. In Gutierrez, our Supreme Court instructed that "`[w]hen the prosecutor's stated reasons are either unsupported by the record, inherently implausible, or both, more is required by the trial court than a global finding that the reasons appear sufficient.'" (Gutierrez, supra, ___ Cal.5th at p. [2017 Cal. Lexis at p. 34].) Here, we are concerned with the adequacy of the record.

1 Batson v. Kentucky (1986) 476 U.S. 79; People v. Wheeler (1978) 22 Cal.3d 258 (Batson/Wheeler).

In considering the third prong under Batson/Wheeler, the trial court here took the matter under submission after framing the issue: "So I have to look at not the fact that [K.T.'s] a young black female, but whether or not she falls into a group neutral determination for being young and in school and not having any real world experience outside of school." The court ultimately concluded as follows:

"I reviewed my notes as to what [K.T.] had to say during the course of her voir dire. And I remember what took place Friday afternoon. And [the prosecutor] appears—is questioning [sic] to the young people were all—put to almost all the young people were regarding their education, their employment, and their future prospect. "The young jurors that he did bump or challenge had been both white, Hispanic, and black, and both men and women. "I do understand the nature of the justification by [the prosecutor]. I don't think it has a basis—or it does have a basis. [The prosecutor's] justification does have a basis and accept [sic] a trial strategy in that young people seem to—do not have—or do have a difficult time with a case of this length and this complexity."

Although reasonable minds perhaps may differ, after taking the matter under submission, the trial court arguably did little, if anything, more than reiterate the reasonableness of the race-neutral justification. This is akin to "`a global finding that the reasons appear sufficient.'" (Gutierrez, supra, ___ Cal.5th at p. ___ [2017 Cal. Lexis at p. 34].) In addition, in making its evaluation, the trial court stated "the ... justification does have a basis and accept [sic] a trial strategy that young people ... have a difficult time with a case of this length and this complexity." Inasmuch as the prosecutor did not state this reason, there is a question as to whether it should be considered, but the record does not support that K.T. would have had such difficulty in any event.

The record shows that four other jurors were excluded based upon their youth and marginal life skills. They each were "in school," but none had completed any degrees. Each of the four exhibited various levels of immaturity, lack of focus or direction, lack of good judgment, ill-considered answers to the prosecutor's questions and uncertain prospects—all traits commonly, but not exclusively, associated with youth and inexperience. In contrast, K.T. was 23, had completed a four-year university degree and was employed in a responsible position. K.T. was admitted to graduate school and had a career plan related to her education. In addition, K.T.'s answers to the prosecutor's questions were thoughtful, reasoned and balanced in contrast to the other four excluded jurors. She presented as mature and articulate. The trial court noted that K.T. was "not like [J.Z.] who is kind of lost and aimless." Based on this record, it is not readily apparent that K.T.'s life skills were marginal. Because of K.T.'s distinguishing qualities, which qualities mitigate against concerns of youth and inexperience to some degree, a question arises as to whether youth and inexperience served as a pretext for excluding her.

The trial court ruled that the prosecutor was justified in excluding K.T. because she falls within the parameters of being young (23), in school (albeit graduate school), and unmarried with no children. The record contains reasonable, credible and solid evidence of those threshold facts and, under traditional notions of "`substantial evidence,'" may be sufficient to uphold the trial court's ruling. (See, e.g., People v. Armstrong (2016) 1 Cal.5th 432, 450.) The question under Gutierrez is whether, given K.T.'s differences from the other four jurors, the prosecutor was required to probe further and create a record of why, notwithstanding those differences, her youth and inexperience remained valid concerns. And, in the absence of a record created by the prosecutor, was the trial court required to do more to build that record? In his concurrence in Gutierrez, Justice Liu emphasizes that the trial court must make a "`sincere and reasoned attempt to evaluate each stated concern as applied to each challenged juror." (Gutierrez, supra, ___ Cal.5th at p. ___ [2017 Cal. Lexis at p. 43] (conc. opn. of Liu, J.).)

Alternatively, is it sufficient, once a race neutral justification has been established, simply to demonstrate that the excluded juror falls within the parameters of the neutral exclusion? The high court in Gutierrez reminded us that the second phase of a Batson/Wheeler analysis "`does not demand an explanation that is persuasive, or even plausible. "... [T]he issue is the facial validity of the prosecutor's explanation."'" (Gutierrez, supra, ___ Cal.5th at p. ___ [2017 Cal. Lexis at p. 26].) The question follows if the evidence of K.T.'s age and marital and student status are sufficient to constitute substantial evidence upholding the trial court's ruling, what distinguishes these findings from "`a global finding that the reasons appear sufficient'"? (Gutierrez, supra, ___ Cal.5th at p. ___ [2017 Cal. Lexis at p. 34].) And how would a finding of substantial evidence under these circumstances comport with the requirement explained in Gutierrez of a more detailed and individualized inquiry as required in the third phase of Batson/Wheeler?

Rehearing is warranted in an abundance of caution to further consider these important issues.


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