Filed 5/10/16 P. v. Jones CA3
                                           NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                      THIRD APPELLATE DISTRICT
                                                    (San Joaquin)
                                                            ----




THE PEOPLE,                                                                                  C078416

                   Plaintiff and Respondent,                                   (Super. Ct. No. MF036597A)

         v.

JESSE RAY JONES IV,

                   Defendant and Appellant.




         A jury found defendant Jesse Ray Jones IV guilty of possession of a controlled
substance for sale (Health & Saf. Code, § 11378) and unlawful possession of ammunition
(Pen. Code, § 30305, subd. (a)(1)). The trial court found true allegations that defendant
had two prior convictions for possession of a controlled substance for sale (Health & Saf.
Code, § 11307.2, subd. (c)) and that he had served a prior prison term (Pen. Code,
§ 667.5, subd. (b)). Sentenced to five years in prison, defendant appeals.
         He contends the trial court committed error under Batson v. Kentucky (1986) 476
U.S. 79 [90 L.Ed.2d 69] (Batson) and People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler)

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by finding no purposeful discrimination based on the prosecutor’s use of peremptory
challenges during jury selection to excuse three women who were or appeared to be
African-American. He further contends the trial court erred in denying his motion for a
mistrial based on the admission of undisclosed and prejudicial evidence. We find no
error and affirm.
                                           FACTS
          The Crimes
          Detectives Osborn, Avakian, and Garcia from the Manteca Street Crimes Unit
were on patrol near defendant’s residence and saw defendant and a woman standing
inside the garage. The detectives decided to perform a probation search of defendant.
Defendant had a baggie with a white substance in his hand. The detectives found two
other bags containing a white substance and a digital scale in the garage. They found no
indicia of personal use. A search of the house revealed a box of ammunition in a hallway
closet.
          A criminalist weighed and analyzed the contents of the three bags. He found
11.208 grams, 1.798 grams, and .740 gram of methamphetamine.
          Detective Armen Avakian, an expert in the possession of narcotics for sale,
testified to his opinion that defendant possessed the drugs for sale. His opinion was
based on the amount of methamphetamine, the scale, and the absence of a pipe, needle, or
other means of ingesting the drug.
          In his defense, defendant testified he possessed the methamphetamine for personal
use; he had purchased enough to last a week. He admitted he used to sell drugs, but
claimed he no longer sold. A father figure for defendant testified he had seen defendant
under the influence of methamphetamine in the last year. As for the ammunition, a close
friend testified that he himself had left it at defendant’s house a year before.




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       Jury Selection
       The People used the first three peremptory challenges to excuse prospective jurors
C., J., and A. C. was a postal clerk; her father had been murdered 25 years before and her
brother had used drugs, but had been clean for 14 years. J. was a medical assistant at
Kaiser. Her cousin had faced similar drug charges two years ago and she knew several
others who had used illegal drugs. A. worked as a nurse at the state prison hospital in
Stockton.
       The prosecutor questioned the prospective jurors on the concept of constructive
possession. He asked C. about the concept that one individual did not have to hold
something or have it on his or her person to possess it. C. responded, “I don’t know.”
She raised the scenario of borrowing someone’s car with a firearm in it and getting pulled
over for a ticket. If that meant she possessed the gun, “I don’t totally agree with that.”
She agreed with the prosecutor that she might have an issue with constructive possession.
J. said she agreed with C. as to the scenario of several people in a car with an illegal item.
She agreed with the prosecutor’s statement that she would have a hard time following the
law to find possession when the person did not actually hold the item or have it on his
person.
       After the prosecutor excused C., J., and A., the defense made a Batson/Wheeler
objection, claiming the prosecutor had excused three African-American women and
defendant was an African-American man. Counsel noted the small number of African-
American individuals in the jury pool. She claimed there was only one left in the box and
one or two in the audience; the majority of African-Americans had been excused.
       The trial court found the defense had failed to make a prima facie case of
discrimination, noting A. did not appear to be African-American. The court invited the
prosecutor to state the basis for his challenges.
       The prosecutor stated he excused C. because her brother had been addicted to
drugs, she gave him dirty looks and gestures, such as eye-rolling and being

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nonresponsive, and she had a hard time with the concept of constructive possession. He
excused J. because she knew several people who use illegal drugs, had a cousin facing
similar charges two years ago, a family member had been murdered, and she had a hard
time with constructive possession. He excused A. because she worked in a state prison
hospital and his experience was that such people have a tendency to be lenient and
sympathetic to defendants.
       At the conclusion of trial the prosecutor put on the record that the jury had
contained two African-Americans. The court noted that was a correct statement.
                                      DISCUSSION
                                             I
                                  Batson/Wheeler Error
       Defendant contends the trial court erred in finding that he had not made a prima
facie showing of discriminatory intent in the prosecutor’s first three peremptory
challenges. He argues the prosecutor excused only African-Americans, or one who
appeared to be African-American, there were few African-Americans in the jury pool,
and none of the excused jurors said she could not follow the law.1
       “Both the state and federal Constitutions prohibit the use of peremptory strikes to
remove prospective jurors on the basis of group bias. [Citations.] The now familiar
Batson/Wheeler inquiry consists of three distinct steps. First, the opponent of the strike
must make out a prima facie case by showing that the totality of the relevant facts gives
rise to an inference of discriminatory purpose in the exercise of peremptory challenges.
Second, if the prima facie case has been made, the burden shifts to the proponent of the



1 Defendant also relies on a comparative analysis of the excused jurors’ responses to
those of selected jurors. As defendant recognizes, our Supreme Court has rejected using
a comparative juror analysis in the first stage of the Batson/Wheeler analysis. (People v.
Bonilla (2007) 41 Cal.4th 313, 350.) Defendant explains that he presents the issue to
preserve it for further review.

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strike to adequately explain the basis for excusing the juror by offering permissible,
nondiscriminatory justifications. Third, if the party has offered a nondiscriminatory
reason, the trial court must decide whether the opponent of the strike has proved the
ultimate question of purposeful discrimination. [Citation.]” (People v. Scott (2015) 61
Cal.4th 363, 383 (Scott).)
       “Although the question at the first stage concerning the existence of a prima facie
case depends on consideration of the entire record of voir dire as of the time the motion
was made [citation], we have observed that certain types of evidence may prove
particularly relevant. [Citation.] Among these are that a party has struck most or all of
the members of the identified group from the venire, that a party has used a
disproportionate number of strikes against the group, that the party has failed to engage
these jurors in more than desultory voir dire, that the defendant is a member of the
identified group, and that the victim is a member of the group to which the majority of
the remaining jurors belong. [Citation.] A court may also consider nondiscriminatory
reasons for a peremptory challenge that are apparent from and ‘clearly established’ in the
record [citations] and that necessarily dispel any inference of bias. [Citations.]” (Scott,
supra, 61 Cal.4th at p. 384.)
       When a trial court denies a Batson/Wheeler motion because it finds defendant
failed to establish a prima facie case of group bias, we consider the entire record of voir
dire and affirm if the record suggests grounds for a reasonable challenge of the jurors in
question. (People v. Panah (2005) 35 Cal.4th 395, 439 (Panah).) The reviewing court
“accord[s] particular deference to the trial court as fact finder, because of its opportunity
to observe the participants at first hand.” (People v. Jenkins (2000) 22 Cal.4th 900, 993-
994.) Where, as here, the trial court has determined that no prima facie case of
discrimination exists, then allows or invites the prosecutor to state reasons for excusing
the juror but refrains from ruling on the validity of those reasons, our review is limited to
the first-stage ruling. (Scott, supra, 61 Cal.4th at pp. 386.)

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       In this case, defendant’s Batson/Wheeler claim “was particularly weak as it
consisted of little more than an assertion that a number of prospective jurors from a
cognizable group had been excused. Such a bare claim falls far short of ‘rais[ing] a
reasonable inference that the opposing party has challenged the jurors because of their
race or other group association.’ [Citation.]” (Panah, supra, 35 Cal.4th at p. 442.)
       Here, the record clearly establishes nondiscriminatory reasons to excuse C., J., and
A. that dispel any inference of discrimination. Both C. and J. agreed with the
prosecutor’s conclusion that they would have difficulty applying the law of constructive
possession, a key concept in this case. Both also had family or friends who used illegal
drugs, suggesting possible sympathy for defendant. J.’s cousin had recently faced similar
charges; the arrest of the prospective juror or a close relative is a neutral reason for
exclusion. (Panah, supra, 35 Cal.4th at p. 442; People v. Allen (1989) 212 Cal.App.3d
306, 315-316 [peremptory challenge properly used where close friend of prospective
juror had been arrested for selling drugs].) The trial court did not believe A. was African-
American, so excusing her did not show group bias. Further, she was a nurse at a prison
hospital. “Occupation can be a permissible, nondiscriminatory reason for exercising a
peremptory challenge. [Citation.]” (People v. Rushing (2011) 197 Cal.App.4th 801,
811.) In People v. Trevino (1997) 55 Cal.App.4th 396, at page 411, defendant failed to
make a prima facie case where the challenged jurors were all Hispanic, but they or their
spouses worked in health care.
       Finally, the seated jury contained two African-Americans. That the jury contained
members of the group allegedly discriminated against, while not conclusive, indicates
good faith in exercising peremptory challenges. (People v. Stanley (2006) 39 Cal.4th
913, 938, fn. 7; People v. Turner (1994) 8 Cal.4th 137, 168, abrogated on another point in
People v. Griffin (2004) 33 Cal.4th 536, 555, fn. 5.)




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                                               II
                                      Denial of Mistrial
       Detective Avakian testified the detectives went to defendant’s residence because
they had received information that he was selling methamphetamine. The defense
objected as hearsay and moved to strike. The court immediately instructed the jury not to
use this evidence for the truth of the matter, “but only for purposes of understanding the
motivation [of] this witness in going to that location on that date.”
       At the next break in proceedings, defendant moved for a mistrial, complaining the
evidence of information that defendant was selling had not been disclosed. Counsel
argued that if the matter had been litigated, the evidence would have been excluded. The
court ruled the statement by Avakian was not incurably prejudicial and denied the motion
for mistrial. Defendant contends this ruling was error.
       A trial court should grant a motion for mistrial “only when ‘ “a party’s chances of
receiving a fair trial have been irreparably damaged” ’ [citation], that is, if it is ‘apprised
of prejudice that it judges incurable by admonition or instruction’ [citation]. ‘Whether a
particular incident is incurably prejudicial is by its nature a speculative matter, and the
trial court is vested with considerable discretion in ruling on mistrial motions.’
[Citation.] Accordingly, we review a trial court’s ruling on a motion for mistrial for
abuse of discretion. [Citation.]” (People v. Avila (2006) 38 Cal.4th 491, 573.) Under
this standard, a trial court’s ruling will not be disturbed, and reversal of the judgment is
not required, unless “the trial court exercised its discretion in an arbitrary, capricious, or
patently absurd manner that resulted in a manifest miscarriage of justice [citation].”
(People v. Rodriguez (1999) 20 Cal.4th 1, 9-10.)
       We find no abuse of discretion. Detective Avakian’s statement was brief, no more
inflammatory than the other evidence at trial, and followed immediately by a limiting
instruction. “[W]e presume the jury faithfully followed the court’s limiting instruction.
[Citation.]” (People v. Ervine (2009) 47 Cal.4th 745, 776.) In arguing that the statement

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was so prejudicial that no admonition could cure it, defendant relies on cases where a
witness improperly referred to the defendant’s criminal history. These cases are
inapposite here where defendant’s criminal history was before the jury; the parties
stipulated that defendant had two prior convictions for possession of methamphetamine
for sale.
                                     DISPOSITION
       The judgment is affirmed.




                                                      /s/
                                                Duarte, J.



We concur:



     /s/
Robie, Acting P. J.



     /s/
Renner, J.




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