Filed 4/13/15 P. v. Farmer CA2/3

                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,                                                             B250695

         Plaintiff and Respondent,                                      (Los Angeles County
                                                                        Super. Ct. No. MA057202)
         v.

KENNETH ANTHONY FARMER,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County,
Daviann L. Mitchell, Judge. Reversed and remanded with directions.

         Ann Krausz, under appointment by the Court of Appeal, for Defendant and
Appellant.

         Kamala D. Harris, Attorney General, Lance E. Winters, Assistant Attorney
General, Chung Mar and Jessica C. Owen, Deputy Attorneys General, for Plaintiff and
Respondent.

                                            _____________________
       Appellant Kenneth Anthony Farmer appeals from the judgment entered following
his conviction by jury of petty theft with prior theft-related convictions, with admissions
he suffered a prior felony conviction and five prior felony convictions for which he
served separate prison terms. (Pen. Code, §§ 666, subd. (a), 667, subd. (d), & 667.5,
subd. (b).) The court sentenced appellant to prison for seven years. We reverse the
judgment and remand the matter with directions.
                                 FACTUAL SUMMARY
1. Appellant’s Wheeler Motion Based on Race, and Objection Based on Gender.1
       During jury selection, the prosecutor’s first five peremptory challenges to
prospective jurors (hereafter, jurors) were to three women, i.e., to Jurors E3431, G0166,
then C1613, then two men. After the challenge to the second of the two men (hereafter,
the second man), appellant, outside the presence of the jury, objected to the challenges to
Juror C1613, and the second man, on the ground they were challenged because they were
African-Americans. The court, discussing Juror C1613 and the second man, noted, inter
alia, both were African-Americans and Juror C1613 was “in family services at a funeral
home.”
       The court concluded appellant had made a prima facie showing the prosecutor had
challenged Juror C1613 and the second man based on group bias predicated on race. The
court invited the prosecutor to tender race-neutral justifications for the challenges. The
prosecutor, first discussing Juror C1613, indicated Juror C1613 was a counselor at a
county funeral home and the prosecutor did not like jurors associated with social services,
because such jurors might be sympathetic to the defense.




1
       The facts pertaining to the present offense are not pertinent to this appeal; we
simply note the record reflects that on August 22, 2012, appellant committed the present
offense.


                                             2
       The prosecutor then stated, “The second thing that went into it was a gender
composition on the jury. You’ll notice that she’s not the only one, there have been a few
at least three if not all four of my challenges have been to females[2] that’s because I’m
trying for my own reasons, I want to have a certain gender composition on the jury.”
Appellant’s counsel then stated, “Raise new objection on that as well.” The court did not
then comment, or rule, upon the objection and appellant did not secure a ruling on it.3
       After appellant’s objection, the prosecutor stated, “I like to have a certain balance
of jurors and, . . . whether it’s -- I’m not kicking her because she’s a female, but I like to
have a certain breakdown of jurors as it relates to it. That’s one thing that went into it.
[¶] And then timely [sic], there were just other jurors that I like better. And, . . . [another
juror] was someone I liked better, and there’s a number of people within the pool that I
like better, and that I may want to try to get for that reason.” The prosecutor then
tendered a race-neutral justification as to the second man.
       Based on the prosecutor’s tendered justifications, the court found the prosecutor
did not challenge Juror C1613 or the second man on the ground of group bias. The court
noted Juror C1613 was a counselor and, regardless of her capacity, counselors usually
were more kind and sympathetic. The court treated appellant’s objection to the
prosecutor’s challenges to Juror C1613 and the second man, on the ground of race, as a
Wheeler motion and denied it.4




2
       As indicated, up to this point the prosecutor had exercised five, not four,
challenges, only three of which were to women.
3
       Appellant’s objection could be construed as a motion pursuant to People v.
Wheeler (1978) 22 Cal.3d 258 (Wheeler) based on gender. However, because the trial
court did not rule on the objection and because this case can be resolved based on the
later Wheeler motions based on gender that the trial court denied, we do not discuss the
validity of appellant’s objection.
4
        The validity of the trial court’s ruling on appellant’s Wheeler motion based on race
is not at issue in this appeal.


                                               3
2. Appellant’s First Wheeler Motion Based on Gender.
       Appellant later, still outside the presence of the jury, objected the prosecutor had
challenged Juror C1613 on the basis of gender. The court then stated, “. . . that is now
untimely because the last juror that was excused was a male[5] and we only have two
jurors that are excused, one male and one female.[6] It may be more timely in the future,
but at this point it’s untimely as I see it on its face because of the composition of the two
that were excused and the arguments that were made.”
       The court later stated, “I’ll accept the defense’s arguments, I’ll also accept the
People’s record. I have reviewed and denied the motion [i.e., the Wheeler motion based
on race], and I’m going to find untimely the additional Wheeler motion on gender.”
(Italics added.)
3. Appellant’s Second Wheeler Motion Based on Gender.
       The prosecutor subsequently, in open court, exercised peremptory challenges as to
four jurors, i.e., two men, then two women. After the challenge to the first man but
before the challenge to the second man, the prosecutor accepted the panel. The two
women were Juror V9212, then Juror R3715.
       After the prosecutor challenged Juror R3715, appellant, outside the presence of the
jury, made a Wheeler motion and stated, “[the prosecutor] is kicking the women off in the
panel. He did make a comment during our previous [Batson v. Kentucky (1986)
476 U.S. 79 [90 L.Ed.2d 69] (Batson)] objection, and with regards to getting rid of
women on the panel. Since then I’ve paid attention to the jurors that were dismissed.
One woman was dismissed, I made no objection. Then the last two witnesses [sic] that
were dismissed were women.”

5
       This was an apparent reference to the previously mentioned second man
challenged by the prosecutor.
6
       This comment by the trial court was unclear. As indicated, up to this point there
were five (not two) jurors excused as a result of challenges by the prosecutor, i.e., three
women and two men (not merely one man and one woman). One man (the second man)
and one of the women (Juror C1613) were African-Americans.


                                              4
       The court noted 18 of the 36 jurors in the panel were women, and five of the nine
persons challenged by the prosecutor were women, “[s]o it’s nearly a split between male
and female.” The court also noted the prosecutor had accepted the panel once.
       The court recounted background information as to each of the total of five women
the prosecutor previously had challenged, i.e., Jurors E3431, G0166, C1613, V9212, and
R3715. The court stated it did not find a prima facie case had been made. Fairly read,
the record reflects the trial court concluded appellant had failed to show a “strong
likelihood” the challenges were made because of group bias; therefore, appellant had
failed to overcome the presumption the prosecutor’s challenges were constitutional. The
court thus implicitly denied appellant’s second Wheeler motion based on gender.
       The court indicated it was basing its above mentioned conclusion on the following
factors as to the five women. Juror E3431 had prior criminal jury experience, but the
court did not know how that affected matters. She was a nurse, which could cause the
prosecutor to be concerned about her sympathies. Nurses tended to be more nurturing.
Juror G0166’s father had been convicted of molestation and her husband was a law
enforcement officer. One could conclude she had biases for and against law
enforcement.
       Juror C1613 was the previously discussed counselor who could be sympathetic to
the defense. Juror V9212’s mother had been the victim of home invasion robbery. 7 The
court stated, “I think that would be a concern that she may have some animosity one way
or another either towards law enforcement, even though she denied that, or because she’s
[sic] been the victim of a crime, that may create a concern for the prosecution.” Juror
R3715’s brother-in-law had been convicted of drug- and theft-related crimes, and Juror
R3715 had been the victim of a crime similar to the present alleged offense, which could
be a matter of concern.

7
       During voir dire, Juror V9212 testified her mother was beaten and robbed in her
home, her mother called law enforcement, and the culprits were caught and prosecuted.
Juror V9212 also testified she thought law enforcement handled the matter appropriately
and the system worked for her “as best [as] it was able.”


                                             5
       The court then indicated that, “even though I have made no prima facie showing,”
and the court was not requesting the prosecutor to state his reasons for exercising the
challenges at issue, the court would allow the prosecutor to state his reasons for them if
the prosecutor voluntarily wanted to do so.
       The prosecutor then indicated as follows. Juror C1613 (the counselor) already had
been discussed. As to Juror E3431, “[a]ctually that one didn’t have anything to do with
the RN, she just she looked like my son’s teacher that I didn’t like in preschool, and when
I was looking at her, we were making eye contact, I never addressed her because there
was something about her that I didn’t like from the very beginning. So I just kind of
stayed away from her. I knew that I wasn’t going anywhere with her eventually.”
       As to Juror G0166, the prosecutor stated, “she sat quietly, she didn’t really seem
engaged in the proceedings, . . . I guess it’s kind of a [double-edged] sword. I don’t want
someone raising their hand all the time either, but she kind of sat and where the questions
were opened up to . . . the general audience, she just kind of sat there. And as I was
looking at her, as I was scanning the jurors, there was just kind of nothing really
registering with her as I was discussing it, so I didn’t have a good feeling about her.”
       The prosecutor stated Juror V9212 “. . . from the very first moment she spoke
showed a very loud voice and I didn’t even turn around, I heard her talking. It was
almost like her voice projected, and even some of the things that she said which I did note
at the time, I kind of quickly had the . . . feeling that this was a woman who I didn’t really
feel a connection with. She was, . . . a homemaker, student, and again at her age I was a
little concerned with that aspect of it, . . . but more it was kind of a general feeling from
the moment she opened her mouth and started speaking, it was just kind of a piercing,
grating voice, so I got rid of her because I thought it would not [be] a good mix with
other jurors should it get to that level.”




                                               6
       As to Juror R3715, the prosecutor stated, “[t]hat was just simply based on the fact
that her brother had been convicted of a theft-related conviction [sic]. And with this
being the same situation, . . . I understand she said that he was treated fairly, but I didn’t
want to keep her for that purpose.” The court later stated, “Record has been made. The
Wheeler motion had been denied.” (Italics added.) Later, the parties accepted the panel
and an alternate juror, and the jury and alternate juror were sworn.
                                            ISSUE
       Appellant claims the trial court erroneously denied his two Wheeler motions that
alleged the prosecutor impermissibly exercised peremptory challenges to women based
on gender.
                                        DISCUSSION
       Appellant claims as previously indicated. We agree. In Wheeler, supra, 22 Cal.3d
258, our Supreme Court stated, “[w]e conclude that the use of peremptory challenges to
remove 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, at pp. 276-277.) Batson reached the same
conclusion based on the federal equal protection clause. (People v. Huggins (2006)
38 Cal.4th 175, 226.)
       When a defendant asserts at trial the prosecution’s use of peremptory challenges
violates the federal Constitution because they are based on gender, the defendant must
make out a prima facie case by showing the totality of the relevant facts gives rise to an
inference of discriminatory purpose. The burden then shifts to the State to explain
adequately the gender exclusion by offering permissible gender-neutral justifications for
the challenges. Thereafter, if a gender-neutral explanation is tendered, the trial court
must decide whether the opponent of the challenge has proven purposeful gender
discrimination. The identical three-step procedure applies when the challenge is brought
under the California Constitution. (Cf. People v. Cowan (2010) 50 Cal.4th 401, 447.)8

8
       References to Wheeler below are to Batson as well.


                                               7
Respondent concedes women are a cognizable group for purposes of Wheeler analysis.
(People v. Garceau (1993) 6 Cal.4th 140, 171; People v. Gray (2001) 87 Cal.App.4th
781, 788.)
       Appellant brought two Wheeler motions based on gender. The court denied the
first as untimely. The court denied the second on the ground appellant did not pass the
first step, i.e., he failed to make out a prima facie case by showing the totality of the
relevant facts gave rise to an inference of discriminatory purpose.
       We initially address the trial court’s denial of appellant’s first Wheeler motion
based on gender. In People v. Gore (1993) 18 Cal.App.4th 692 (Gore), the court stated,
“Many cases have reiterated the statement that to be timely a Wheeler motion should be
made before the jury has been sworn. [Citations.]” (Gore, at p. 701.) “[T]o be timely a
Wheeler objection or motion must be made, at the latest, before jury selection is
completed.” (Gore, at p. 703.)
       Appellant made his first Wheeler motion based on gender before the jury was
sworn. Respondent concedes the trial court erred by concluding this motion was
untimely. We accept the concession. We hold the trial court erred by concluding
appellant’s first Wheeler motion based on gender was untimely.
       The remaining issue pertains to remedy. When a trial court erroneously denies a
Wheeler motion on the ground the motion is untimely, an appellate court, instead of
completely reversing the conviction, may remand the matter for limited proceedings.
(People v. Rodriguez (1996) 50 Cal.App.4th 1013, 1023-1025, 1036 (Rodriguez); Gore,
supra, 18 Cal.App.4th at pp. 705-707.) In both Rodriguez and Gore, the defendant, after
12 jurors were sworn, made a single Wheeler motion during the selection of the alternate
jurors, claiming prosecutorial challenges to certain of the 12 sworn jurors, and a certain
alternate juror(s), were based on group bias. (Rodriguez, at pp. 1020-1023). The trial
court in each case concluded the motion was untimely as to the challenges to sworn
jurors but timely as to the challenged alternate juror(s). (Id. at pp. 1021, 1023.)




                                               8
       In Gore, the trial court expressly found the defendant had made a prima facie case
as to the challenged alternates, the trial court asked the prosecutor to explain his reasons
for those challenges and, after the prosecutor complied, the trial court denied the Wheeler
motion. (Gore, supra, 18 Cal.App.4th at pp. 698-699.) Gore concluded, “the trial court
erroneously limited defendant’s Wheeler motion to [three] challenges made during the
selection of the alternate jurors, thereby foreclosing all consideration of the People’s
[four] peremptory challenges to Hispanic prospective jurors removed during the selection
of the panel of 12 jurors.” (Gore, at p. 696.) Gore stated, “the trial court should have
considered the motion as to all seven challenged Hispanic prospective jurors and not
limited its inquiry to only the alternate juror selection process.” (Id. at p. 705.)
       Gore later stated, “On remand the court will necessarily reexamine the validity of
the prosecutor’s reasons for challenging the three Hispanic alternate jurors in the light of
the prosecutor’s reasons for challenging the four Hispanic jurors on the regular panel.
The court will examine ‘the totality of the relevant facts and . . . consider all the relevant
circumstances.’ [Citation.]” (Id. at p. 706.) Gore remanded the matter, directing the trial
court to assume (1) the Wheeler motion was timely as to all seven challenges and (2) the
defendant had established a prima facie case of wrongful exclusions (id. at p. 707), thus
placing the burden of proof on the prosecution to justify the challenges. (Ibid.)
       In Rodriguez, the trial court did not expressly find the defendant had made a prima
facie case as to one challenged alternate juror, but the court asked the prosecutor to
explain his reasons for that challenge and, after the prosecutor complied, the trial court
denied the Wheeler motion. (Rodriguez, supra, 50 Cal.App.4th at p. 1022.) The
defendant claimed the trial court erred by finding his Wheeler motion untimely as to the
prosecutor’s challenges to two sworn jurors. (Id. at pp. 1022-1023.) Relying in part on
Gore, Rodriguez remanded the matter to permit the trial court to determine the validity of
the prosecutor’s challenges to the two sworn jurors, to determine whether the
prosecutor’s challenges were racially neutral, and to conduct further proceedings
accordingly. (Id. at pp. 1020-1021, 1036.)



                                               9
       In determining whether remand was appropriate, Gore and Rodriguez considered,
inter alia, the period between jury voir dire and the appellate court opinion, since this
would impact whether the trial court and parties would be able to remember what
happened during voir dire in the event of a remand. In Gore, the period was between one
and two years. (Gore, supra, 18 Cal.App.4th at p. 706.) In Rodriguez, the period was
two months short of three years. (Rodriguez, supra, 50 Cal.App.4th at pp. 1020, 1025.)
       In the present case, on February 28, 2013, voir dire began, the prosecutor
challenged the first three women (Jurors E3431, G0166, and C1613), the court denied
appellant’s first Wheeler motion based on gender as untimely, and the prosecutor
challenged the fourth woman (Juror V9212). On March 4, 2013, the prosecutor
challenged the fifth woman (R3715) and the court denied appellant’s second Wheeler
motion based on gender. All of these events occurred only about two years ago. The
reporter’s transcript reflects the proceedings below, including voir dire, and is available
for review. Under these circumstances, we conclude this matter may be remanded.
       Moreover, although, Gore and Rodriguez each involved one Wheeler motion
based on gender while the present case involves two, this is a distinction without a
difference. The essence of what happened here is what happened in Gore and Rodriguez:
the trial court here ruled appellant’s constitutional challenge was partially untimely and
partially timely.
       In the present case, on February 28, 2013, after the court invited the prosecutor to
tender race-neutral justifications, the prosecutor began to do so by discussing Juror
C1613. The prosecutor stated, inter alia, “The second thing that went into it was a gender
composition on the jury. You’ll notice that she’s not the only one, there have been a few
at least three if not all four of my challenges have been to females that’s because I’m
trying for my own reasons, I want to have a certain gender composition on the jury.” The
prosecutor miscounted the total number of his peremptory challenges up to that point—
there were (including men and women) five, not four. The prosecutor miscounted the
total number of his challenges to women—there were three, not four. However, the



                                             10
prosecutor clearly indicated all of his challenges to women (Jurors E3431, G0166, and
C1613) to that point were based on gender.
       It is true the prosecutor stated, “I’m not kicking [Juror C1613] because she’s a
female.” However, the prosecutor’s credibility in making that statement was undermined
by the facts (1) he made that statement only after appellant “raise[d] [his] new objection”
(presumably on the ground the prosecutor was impermissibly challenging the women
based on gender), and (2) immediately after stating he was not kicking Juror C1613
because she was a female, the prosecutor stated, “I like to have a certain breakdown of
jurors as it relates to it.” The fact the prosecutor challenged Juror C1613 on the ground
of gender, not as an end in itself but to affect the jury composition not only does not
change the fact he challenged her, at least in part, based on gender but demonstrates he
did so, at least in part, to affect jury composition in a way that is constitutionally
prohibited.
       We note that, after the prosecutor indicated he had challenged the three women
jurors based on gender, and after appellant “raise[d] [his] new objection” to that fact, the
trial court did not then comment on the fact the prosecutor effectively stated he had
challenged the women on an unconstitutional basis—gender. When appellant later made
his first Wheeler motion based on gender, the trial court denied it as untimely but did not
address the fact the prosecutor effectively stated he had challenged the three women on
an unconstitutional basis. When appellant made his second Wheeler motion based on
gender, the trial court discussed various factors leading to its decision appellant had not
made a prima facie showing, but never discussed the fact the prosecutor effectively stated
he had challenged the three women on an unconstitutional basis.
       We hold the trial court erred by concluding appellant did not make out a prima
facie case and therefore denying appellant’s second Wheeler motion based on gender.




                                              11
We further hold appellant has made out a prima facie case by showing the totality of the
relevant facts gives rise to an inference9 of discriminatory purpose.
       We will remand the matter for the limited purpose of permitting the trial court to
conduct a new Wheeler hearing, during which the trial court shall assume (1) appellant’s
second Wheeler motion was timely as to all five women (i.e., Jurors E3431, G0166,
C1613, V9212, and R3715) peremptorily excluded by the prosecutor, and (2) appellant
has made out a prima facie case by showing the totality of the relevant facts gives rise to
an inference of discriminatory purpose, thereby placing the burden of proof on the
prosecution to justify the exclusion of these jurors. If the trial court grants the motion
after the hearing, appellant shall be given a new trial. If the trial court denies the motion
after the hearing, the judgment shall be reinstated. (See Gore, supra, 18 Cal.App.4th at
p. 707.)
       We express no opinion as to how the trial court should resolve the issues of
whether the prosecutor offered a permissible gender-neutral justification for a challenge,
or, if the prosecutor tendered a gender-neutral explanation, whether the prosecutor
engaged in purposeful gender discrimination.




9
       Respondent concedes the trial court, when deciding whether appellant had made
out a prima facie case, used the wrong standard by deciding whether appellant had failed
to show by a “strong likelihood” the prosecutor’s challenges were based on group bias.
We accept the concession and conclude the trial court erred in this respect as well.


                                             12
                                    DISPOSITION
      The judgment is reversed and the matter is remanded with directions to the trial
court to conduct a new Wheeler hearing and further proceedings consistent with this
opinion.
      NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                                KITCHING, J.

We concur:




                    EDMON, P. J.




                    ALDRICH, J.




                                           13
