Filed 5/12/14 P. v. El Mir CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D063375

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. SCD242688)

ADAM EL MIR,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Diego County, Melinda J.

Lasater, Judge. Affirmed.



         Alissa Bjerkhoel, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Barry Carlton and Heather M.

Clark, Deputy Attorneys General, for Plaintiff and Respondent.
       Adam El Mir appeals a judgment entered after his jury convictions of receiving

stolen property (count 3; Pen. Code, § 496, subd. (a)),1 burglary (count 4; § 459), and

driving under the influence of drugs (count 5; Veh. Code, § 23152, subd. (e)). On appeal,

he contends the trial court erred by denying his Batson/Wheeler2 motion.

                   FACTUAL AND PROCEDURAL BACKGROUND

       In July 2012, Juliana Morse took her 1997 white Jeep Grand Cherokee to an auto

body shop for repairs in preparation to sell it. She provided the shop's manager, Aaron

Nguyen (Aaron),3 with the keys. After the repairs were complete, the vehicle remained

at the auto body shop because Morse and an employee of the shop, Thuan Nguyen

(Thuan), entered into negotiations for Morse to sell the Jeep to Thuan.

       In August 2012, Thuan parked the Jeep in a parking lot across the street from the

auto body shop. The lot was surrounded by a six-foot tall fence with a locked gate. At

the end of the day, Thuan gave the keys back to Aaron, who locked the keys in his office.

However, the next morning the Jeep was gone. After confirming Morse did not have the

vehicle and that the keys were still in the office, Aaron called the police and reported the

vehicle stolen.




1      Statutory references are to the Penal Code unless otherwise specified.

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

3      We use first names to differentiate between Aaron Nguyen and Thuan Nguyen,
and intend no disrespect.

                                              2
       Several days later, Lepenegs Araya, a part-time cook for Muzita Bistro, arrived at

the restaurant around 6:00 a.m. When she arrived, she noticed the back door was

unlocked and slightly open. Inside, she found the restaurant had been ransacked, the cash

drawer from the register and paychecks were missing, and two half-empty bottles were

on the counter and floor. A police officer dispatched to the scene around 7:05 a.m.

determined the front door had been pried open. In addition, the officer found latent

fingerprints on the window as well as on the half-empty bottles. Subsequent testing of

the fingerprints revealed El Mir's DNA.

       That same day, police responded to a dispatch call about a vehicle stuck in the

grass at the bottom of an embankment. When the officers arrived, they found a white

Jeep Grand Cherokee down an embankment with El Mir pacing back and forth next to it.

The officers noted he appeared to be under the influence of methamphetamine because he

appeared "a little bit amped up" and spoke in rapid, slurred speech, mumbled his words

and was fidgety.

       Inside the Jeep, the officers found a black metal register drawer with a large

amount of money as well as receipts, business cards, and paychecks from Muzita Bistro.

A records check revealed the Jeep had been stolen.

       An information charged El Mir with felony receipt of a stolen vehicle (count 1;

§ 496d), felony unlawful taking or driving a vehicle (count 2; Veh. Code, § 10851, subd.

(a)), felony receiving stolen property (count 3; § 496, subd. (a)), felony second degree

burglary (count 4; § 459), and misdemeanor driving under the influence of drugs (count

5; Veh. Code, § 23152, subd. (e)). In addition, the prosecution alleged El Mir had been

                                             3
convicted two or more times of a felony (§ 1203, subd. (e)(4)) and that he had served

nine prior prison terms (§§ 667.5, subd. (b), 668).

       The jury acquitted El Mir of counts 1 and 2 and returned a guilty verdict on all

other counts. El Mir waived his right to a jury trial on, and admitted, the prior conviction

allegations. The court sentenced him to the upper term of three years for receiving stolen

property, the upper term of three years for second degree burglary (stayed under § 654),

and the upper term of 180 days for driving under the influence with credit for time

served. In addition, the trial court imposed a one-year sentence for each of El Mir's nine

prior prison terms for a total sentence of 12 years.

                                       DISCUSSION

       El Mir contends his conviction must be reversed because the prosecutor

committed Batson/Wheeler error by using a peremptory challenge to excuse an African-

American juror based solely on the juror's race. El Mir's counsel opposed the

prosecution's peremptory challenge to excuse the juror and requested that the trial court

disallow the challenge. The trial court concluded that El Mir made a prima facie showing

of discrimination, and the prosecutor provided race-neutral explanations for his use of the

peremptory challenge against prospective juror No. 4. El Mir's argument focuses on the

third step of the Wheeler analysis and contends the trial court erred because the reasons

given by the prosecutor were pretextual and not supported by substantial evidence in the

record, and violated his constitutional rights to equal protection and a jury selected from a

representative cross-section of the community.



                                              4
                                              I

       We review the trial court's ruling on a motion under Wheeler and Batson for

substantial evidence. (People v. McDermott (2002) 28 Cal.4th 946, 971.) The use of

peremptory challenges to excuse prospective jurors solely on account of their race

violates both the federal and state Constitutions. (Batson v. Kentucky, supra, 476 U.S. at

p. 89; People v. Wheeler, supra, 22 Cal.3d at pp. 276-277.) A legitimate reason for

peremptorily challenging a juror need not be a reason that makes sense, so long as it does

not offend equal protection. (People v. Reynoso (2003) 31 Cal.4th 903, 924.) " '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.' " (People v. Lenix (2008) 44 Cal.4th 602, 613-614.) However, the deferential

standard is applied only if the trial court has made a sincere and reasoned effort to

evaluate the nondiscriminatory justifications offered. (People v. Lewis and Oliver (2006)

39 Cal.4th 970, 1009; People v. Silva (2001) 25 Cal.4th 345, 385-386.)

                                              II

       During jury selection, in response to the trial court's questions, prospective juror

No. 4 described her background and ability to be fair and impartial:

          "I'm a team leader at [a] call center. I have children. I've never
          served as a juror in the past. I don't have any friends or relatives in
          law enforcement. I have no other information, and, yes, I do believe
          I would be a fair and impartial juror."

In response to the prosecutor's additional questions, prospective juror No. 4 clarified she

was a team leader for 90 people working in sales and service. In addition, although she


                                              5
did not have the ability to make hiring and firing decisions, she had authority to "look at

customers' accounts, read notes, decide if they need credits or not based upon what [she

found] in the notes, and things of that nature."

       After two rounds, the prosecutor exercised a peremptory challenge against

prospective juror No. 4. El Mir's counsel subsequently requested a sidebar conference

and objected to the prosecutor's peremptory challenge of prospective juror No. 4.4 After

hearing arguments from both counsel, the court determined El Mir's counsel made a

prima facie showing of the presence of purposeful discrimination as to prospective juror

No. 4 because the prosecutor had peremptorily challenged the only two African-

Americans in the jury pool, and although the court would not have found a prima facie

case as to the first juror excused due to her mannerisms and answers, it stated, "there is

nothing on the face of it that would cause me to think that there would be a basis to

excuse her."

       The prosecutor then stated his reasons for the peremptory challenge of prospective

juror No. 4. He stated the new jurors who came in during later panels were "frankly very

good for the People" and that in comparison, "[ prospective juror No. 4 is] just not as

good as the other jurors nor the jurors the People have coming up in the future." Further,

the prosecutor stated she was his "least rated [juror] in the group remaining" because she

is young--which is not a protected class--and lacks the "life experience necessary to make


4      During the sidebar conference, defense counsel expressed that she was "concerned
with the fact that there were only two African-American jurors here in this potential panel
and both were excused by [the prosecutor]." Although El Mir is not African-American,
his counsel is.
                                             6
difficult decisions," particularly questioning her ability to vote guilty in a criminal trial.

The prosecutor pointed to the facts that (1) she has no authority to hire or fire anybody;

(2) her position was more sales or service oriented; (3) she was never a juror on a

criminal trial; (4) she has no friends in law enforcement; and (5) she has children, but is

not married. In addition, the prosecutor considered the fact that defense counsel was out

of challenges, which would allow the People to "basically hand pick the jury."

       In response, El Mir's counsel argued that many of the jurors remaining at that

stage were not married, and did not have children or prior jury experience. Counsel

reiterated her belief that, based on prospective juror No. 4's attentiveness, level of

understanding and responses, "it appears as if the reason why she was excused is because

she's African[-]American."

       Based on counsel's arguments, the court made initial findings and stated it would

rule on the motion after further briefing:

           "I am making a finding that [the prosecution] exercised pre-empts
           based upon youth, which was the primary reason. I also think that
           the pre-empt was exercised based upon race. I don't think that was
           the primary reason . . . and I think under that circumstance if I were
           to strictly follow the law, that I would deny the motion. [¶]
           However . . . in the interest of justice . . . I would grant the motion."

       After further argument and briefing from both counsel, the court denied El Mir's

Batson/Wheeler motion.




                                               7
                                             III

       We conclude the record shows the trial court made a " 'sincere and reasoned effort

to evaluate' " the prosecutor's explanation for challenging prospective juror No. 4.5

(People v. Lewis and Oliver, supra, 39 Cal.4th at p. 1009, quoting People v. Burgener

(2003) 29 Cal.4th 833, 864.) Furthermore, we conclude there is substantial evidence to

support the court's finding that the prosecutor's reasons for challenging prospective juror

No. 4 were plausible and nondiscriminatory. (Lewis and Oliver, at p. 1009.) The

primary reasons cited by the prosecutor for challenging her were her youth and lack of

life experience. The prosecutor explained prospective juror No. 4 was not only excused

because of her age, but also because she does not have the life experience other potential

members of the jury have that would enable her to make decisions in a difficult criminal

case. In addition, the prosecutor attempted to determine whether prospective juror

No. 4's youth could be overcome by evaluating her life experiences--marital status,

having the ability to hire and fire employees, her experience with drugs, prior jury

experience in a criminal trial, and friends in law enforcement--that would enable her

make the difficult decision to return a guilty verdict. Consistent with the prosecutor's




5      Because the parties do not dispute the trial court's finding El Mir made a prima
facie case showing prospective juror No. 4 was challenged by the prosecutor based on her
race, we presume the trial court correctly decided that issue and proceeded to address the
prosecutor's stated nondiscriminatory reasons and the trial court's determination of
El Mir's Batson/Wheeler motion.

                                             8
reasoning, he excused seven jurors--five because of their youth.6 Based on these reasons,

the court properly determined prospective juror No. 4 was peremptorily excused for

nondiscriminatory reasons. (See McDermott, supra, 28 Cal.4th at p. 981.)

       El Mir further contends the prosecutor's proffered reasons for excusing prospective

juror No. 4 were a mere pretext because he did not challenge other jurors who gave

similar answers, and challenged jurors who gave dissimilar answers. In support, El Mir

compares the characteristics of prospective juror No. 4 to those of jurors either selected

or dismissed by the prosecutor.

       Evidence of comparative juror analysis, although subject to inherent limitations,

must be considered when reviewing claims of error at Wheeler/Batson's third stage when

the defendant relies on that evidence and the record is adequate to permit the

comparisons. (People v. Lenix, supra, 44 Cal.4th at p. 622.) However, although two

panelists may give similar answers, "the risk posed by one panelist might be offset by

other answers, behavior, attitudes or experiences that make one juror, on balance, more

or less desirable." (Id. at p. 624, italics added.) As a result, the complexity of human

nature makes "a formulaic comparison of isolated responses an exceptionally poor

medium to overturn a trial court's factual finding." (Ibid.)

       El Mir discusses five reasons the prosecutor provided for excusing prospective

juror No. 4 in relation to other selected jurors. However, in doing so he ignores the

6      The prosecutor provided explanations as to the other two jurors excused for
reasons besides youth. As to the first juror, a white male in his 40's, he was an English as
a second language teacher that "had a very strange looking appearance." Regarding the
second juror, a white female in her 50's, she and her husband were teachers and he was
concerned because teachers are "typically not pro prosecution."
                                              9
juror's ages taken into consideration with their other personal characteristics, particularly

having life experience adequate to overcome youth. For example, although the

prosecutor excused five prospective jurors because of youth and lack of life experience,

he seated one juror similar in age to her. However, unlike prospective juror No. 4, the

seated juror had life experience working at a children's emergency shelter for abused

children, where she frequently deals with difficult situations when she interacts with law

enforcement and abused and abandoned children. The prosecutor specified this is the

type of life experience that would overcome her youth and enable her "to do this type of

case."

         We conclude the court properly found El Mir did not carry his burden to prove the

prosecutor challenged prospective juror No. 4 for a discriminatory reason. Because there

is substantial evidence to support the court's finding regarding the nondiscriminatory

explanation for the prosecutor's peremptory challenge of her, we defer to the court's

decision and conclude it did not err by denying El Mir's Batson/Wheeler motion. (See

McDermott, supra, 28 Cal.4th at pp. 971, 981.)

                                       DISPOSITION

The judgment is affirmed.


                                                                  McDONALD, Acting P. J.
WE CONCUR:


O'ROURKE, J.


AARON, J.

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