Filed 7/18/13 P. v. Martinez CA1/3
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,
         Plaintiff and Respondent,
                                                                         A134714
v.
ENRIQUE TORRES MARTINEZ,                                                 (San Mateo County
                                                                          Super. Ct. No. SC072999A)
         Defendant and Appellant.


         This is an appeal from judgment after defendant Enrique Torres Martinez was
convicted of two felony drunk driving offenses, one misdemeanor offense of failing to
stop at the scene of an accident, and one misdemeanor offense of driving with a
suspended license, with enhancements for certain prior felony violations. The trial court
sentenced defendant to a total prison term of six years. Defendant challenges the
judgment on the sole ground that the prosecutor violated his right to a fair and impartial
jury by using peremptory challenges to strike four minority women from the jury panel,
leaving the jury without Hispanic representation. We affirm.

                        FACTUAL AND PROCEDURAL BACKGROUND
         On May 9, 2011, an amended criminal information was filed charging defendant
with: (1) felony driving under the influence of alcohol (DUI) within ten years of two
prior felony DUI violations (Veh. Code, §§ 23152, subd. (a), 23550.5, subd. (a)(1))
(count one);1 (2) felony driving with a blood-alcohol level of 0.08 percent or greater

1
         Unless otherwise stated, all statutory citations herein are to the Vehicle Code.


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within ten years of two prior felony DUI violations (§§ 23152, subd. (b), 23550.5, subd.
(a)(1)) (count two); (3) misdemeanor failing to stop at the scene of an accident (§ 20002,
subd. (a)) (count three); and (4) misdemeanor driving with a driver’s license suspended
for a DUI conviction (§ 14601.2, subd. (a)) (count four). The amended information
alleged with respect to all counts that defendant had sustained four prior felony
convictions for being under the influence of a controlled substance (Health and Safety
Code, § 11350), and three prior felony DUI convictions (§ 23152).
       The charges and allegations set forth above stemmed from events occurring on the
evening of January 21, 2011, in Daly City. Because the only issue raised on appeal
relates to the circumstances of defendant’s trial rather than of his underlying offenses, we
describe the events of this evening only briefly to provide the relevant background to the
trial. Defendant, driving a blue-green Honda Civic, pulled in front of Enrique Tobar on
San Pedro Avenue, cutting him off. Tobar reacted by repeatedly blowing his horn. After
about two blocks, with Tobar’s vehicle still following behind the Civic at a distance of
about 10 to 15 feet, defendant slammed on his brakes. Tobar, without time to brake, hit
the Civic from behind, damaging his front-bumper. Tobar pursued defendant’s vehicle in
an attempt to get the Civic’s license plate number. Defendant stopped, exited his vehicle,
and walked to Tobar’s vehicle. Defendant complained Tobar had hit the Civic. Tobar
responded that he would call the police, at which point defendant returned swiftly to his
vehicle and drove away. Tobar then called 911 from his cell phone. According to
dispatch records, this call was placed at 9:45 p.m.
       Tobar was subsequently able to provide the police with the Civic’s license plate
information, which was then used to trace the vehicle to Maria Gutierrez, defendant’s
girlfriend. Police officers went to Gutierrez’s residence around 10:00 p.m., where they
found the slightly-damaged Civic and observed through a window defendant asleep on
the living room couch with a near-full beer on a nearby table. Defendant admitted he had
been driving the Civic earlier in the evening, and that he had consumed three beers before
leaving work at about 6:00 to 6:30 p.m. He denied drinking more alcohol following the
collision with Tobar’s vehicle. Nonetheless, defendant failed field sobriety tests and a


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preliminary alcohol screening sample indicated his blood-alcohol level was 0.166 percent
at 10:41 p.m.2 The officers thus arrested defendant for driving under the influence of
alcohol and admonished him to elect to take a mandatory blood or breath alcohol
screening test. Defendant refused, and the officer ultimately decided he would take a
blood test. A phlebotomist was summoned, who drew blood from defendant at 11:40
p.m., revealing a blood-alcohol level of 0.19 percent.3
       At the time of defendant’s arrest, his driver’s license was already suspended for a
previous drunk driving violation.
       At trial, Gutierrez testified that, on the night in question, defendant arrived home
between 9:00 and 9:30 p.m., after which she saw him drinking a beer in the living room
with a box of beer nearby. She spent most of the night folding clothes in the bedroom so
did not have much occasion to observe defendant drinking; however, the next day she
found an empty shot glass smelling of tequila and several empty beer bottles.4
       On May 16, 2011, a jury found defendant guilty of the misdemeanor offenses of
failing to stop at the scene of the accident and driving with a suspended license, but could
not reach a verdict with respect to the two felony drunk driving offenses, resulting in a
mistrial.
       On October 5, 2011, a second jury convicted defendant of both felony drunk
driving offenses. The trial court then found true in bifurcated proceedings that defendant
committed counts one and two within ten years of the alleged prior DUI convictions.
       On December 22, 2011, following a hearing, the trial court denied defendant’s
request for probation and sentenced him to the upper three-year term as to count one;
stayed imposition of a sentence as to count two; ordered him to serve 90 days in county

2
       The officers failed four times to get a second preliminary alcohol screening
sample.
3
       At some point, another officer brought Tobar to Gutierrez’s residence, where
Tobar positively identified defendant as the driver of the Civic involved in the accident.
4
       A criminalist testified in rebuttal that, if a 240-pound male were to begin
consuming alcohol at 9:45 p.m. and end by 10:04 p.m., he would have to consume 14
drinks to have a blood-alcohol level of 0.19 percent at 11:40 p.m.


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jail as to counts three and four, with 90 days of custody credit for each count; and
sentenced him to consecutive one-year terms as to each of the three prior felony
conviction enhancements. An aggregate sentence of six years in prison was thus ordered.
This timely appeal followed.

                                       DISCUSSION
       Defendant raises a single issue for our review. He contends the prosecutor
violated his constitutional rights to equal protection and to a trial by jury by using the
People’s peremptory challenges to exclude from the jury a cognizable group of minority
women (to wit, one African-American and three apparently Hispanic women). The
result, defendant contends, was a jury lacking Hispanic representation.5
       The following well-established legal principles guide our review. “[U]se 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” and “the defendant’s right to equal protection under the
Fourteenth Amendment to the United States Constitution.” (People v. Avila (2006) 38
Cal.4th 491, 541, citing Batson v. Kentucky (1986) 476 U.S. 79, 88 [Batson]; People v.
Wheeler (1978) 22 Cal.3d 258, 276-277 [“remov[ing] prospective jurors on the sole
ground of group bias violates the right to trial by a jury drawn from a representative
cross-section of the community under article I, section 16, of the California
Constitution”] [Wheeler].)
       When, as here, a defendant challenges the prosecution’s use of peremptory strikes
by way of a so-called Wheeler/Batson motion, he or she must comply with the following
procedures. 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.’


5
      According to defendant, while one woman remaining on the jury had a Hispanic
surname, she appeared to be of Caucasian descent.


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[Citation.]” (People v. Williams (2013) 56 Cal.4th 630, 649.) Second, if the defendant
succeeds in making this 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.” ’ (Johnson v. California (2005) 545 U.S. 162, 168 [162 L.Ed.2d 129,
125 S.Ct. 2410], fn. omitted.]” (People v. Williams, supra, 56 Cal.4th at p. 649; see
also People v. Johnson (1989) 47 Cal.3d 1194, 1216.)
       “The existence or nonexistence of purposeful racial discrimination is a question of
fact.” (People v. Lewis (2008) 43 Cal.4th 415, 469.) As such, on appeal, we must uphold
the trial court’s denial of a Wheeler/Batson motion “if the ruling is fairly supported by
substantial evidence in the record, giving deference to the trial court which had the
opportunity to observe . . . the juror.” (People v. Holt (1997) 15 Cal.4th 619, 651
(italics added); see also People v. Williams, supra, 56 Cal.4th at p. 649.) “ ‘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.] As long as the court ‘makes a sincere and reasoned effort to evaluate
the nondiscriminatory justifications offered, its conclusions are entitled to deference on
appeal.’ [Citation.]” (People v. Williams, supra, 56 Cal.4th at p. 650.)
       Here, the trial court denied defendant’s Wheeler/Batson motion for lack of a prima
facie showing that the totality of the relevant facts gave rise to an inference of
discriminatory purpose. The facts underlying the trial court’s ruling are as follows.
       The prosecution used its first four peremptory challenges to strike the following
prospective jurors: (1) Ms. G., who defense counsel described as Hispanic, but the
prosecutor described as Filipino; (2) Ms. B.H., an African-American; (3) Ms. L.E., who
appeared Hispanic; and (4) Ms. H., who defense counsel described as Hispanic, but the
trial court described as non-Hispanic and without any noticeable accent. After the
prosecutor’s fourth challenge, defense counsel brought a Wheeler/Batson motion on the
ground that the prosecution had discriminated against a cognizable group during the jury

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selection process with the result that a representative sample of Hispanic persons had
been eliminated. The trial court thereafter permitted the prosecution to state for the
record its reasons for striking the above-identified persons.
       With respect to Ms. G., the prosecutor noted two reasons for her excusal. First,
Ms. G. had her own pending court case that, like this case, related to alcohol. Second,
Ms. G. had noted in voir dire that, as a general matter, she found the police disappointing
and frustrating.
       With respect to Ms. B.H., the prosecutor described her as an “over-thinker,” and
expressed concern that, if seated on the jury, she would get “caught up in the minutia of
the case,” potentially leading to another mistrial.
       The prosecutor chose to strike Ms. L.E., in turn, due to her youthful and
untraditional appearance, which included blue nail polish and very torn jeans, “along with
the manner in which she responded to some of the questions posed to her.” According to
the prosecutor, she preferred a jury composed of individuals more conservative than
Ms. L.E.
       And, finally, with respect to Ms. H., the prosecutor exercised the peremptory
challenge due to the prospective juror’s “sullen” and “curt” responses and demeanor.
       The trial court expressly accepted each of these explanations as indicative of the
prosecutor’s non-discriminatory motivation for excusing the identified prospective jurors.
Subsequently, the trial court clarified to defense counsel that it did not find, as an initial
matter, that a prima facie showing of discrimination had been presented. A jury
composed of 11 Caucasians and one Filipino was thereafter impaneled.
       Based upon the above record, we conclude substantial evidence supports the trial
court’s denial of defendant’s Wheeler/Batson motion, even if we were to assume for the
sake of argument that defendant made a prima facie showing. (People v. Bonilla (2007)
41 Cal.4th 313, 341-342.) First, the prosecutor’s explanation for striking Ms. G. – that
she, like defendant, had an alcohol-related case pending – is undoubtedly valid. It is a
legitimate and non-discriminatory reason why the prosecution could in good faith
question whether Ms. G. would be an impartial juror and, as such, is wholly proper.


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(People v. Williams, supra, 56 Cal.4th at p. 649.) The same is true for the prosecutor’s
striking of Ms. L.E. due to her youthful and untraditional demeanor and appearance. It is
a common and appropriate trial strategy for counsel to strive to have seated a
conservative jury to alleviate concern that said jury would be too sympathetic towards the
defendant or too mistrusting of law enforcement to render a fair verdict. (People v. Lenix
(2008) 44 Cal.4th 602, 613 [prosecutor may excuse a prospective juror “based upon
facial expressions, gestures, hunches, and even for arbitrary or idiosyncratic reasons,” so
long as such reasons are nondiscriminatory].)
       Next, with respect to Ms. B.H., we agree with the trial court that striking this
individual out of concern that she might “over-think” the case was a proper peremptory
challenge. As our high court has explained: “ ‘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.’ ” (People v. Reynoso (2003) 31
Cal.4th 903, 924; see also People v. Guerra (2006) 37 Cal.4th 1067, 1101.) And, finally,
we reach the same conclusion with respect to the prosecutor’s explanation that Ms. H.
was excused based upon her “sullen” and “curt” responses and demeanor. Whether or
not reasonable, the prosecutor’s rationale is nondiscriminatory. As such, the trial court,
which, unlike this court had the opportunity to observe first-hand Ms. H’s statements and
expressions, was entitled to accept it. We decline to second-guess the trial court’s
judgment on this record. (Ibid.; People v. Holt, supra, 15 Cal.4th at p. 651 [reviewing
court must give “giv[e] deference to the trial court which had the opportunity to
observe . . . the juror”], italics added.)
       Thus, because the prosecutor’s stated reasons for excusing Ms. G., Ms. L.E.,
Ms. B.H. and Ms. H are reasonably grounded, not in purposeful discrimination, but rather
in appropriate trial strategies relating to avoiding jurors who might decide a defendant’s
guilt based on sympathy, aversion to law enforcement, inability to reach a final decision,
or some other improper ground, there is no basis to reverse the trial court’s decision.
(People v. Lewis, supra, 43 Cal.4th at p. 469 [“The credibility of a prosecutor’s stated

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reasons for exercising a peremptory challenge ‘can be measured by, among other factors
. . . how reasonable, or how improbable, the explanations are; and by whether the
proffered rationale has some basis in accepted trial strategy’ ”].)
       Accordingly, because defendant has failed to provide any ground for reversing the
trial court’s denial of his Wheeler/Batson motion, we affirm.

                                      DISPOSITION
       The judgment is affirmed.



                                                  _________________________
                                                  Jenkins, J.


We concur:


_________________________
Pollak, Acting P. J.


_________________________
Siggins, J.




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